Davidson v. Lambton Kent District School Board, 2008 HRTO 294

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peter Davidson by his Litigation Guardian Michelle Davidson

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Lambton Kent District School Board and G. Wayne Brown

Respondents

INTERIM DECISION

Adjudicator: Sherry Liang

Date: November 21, 2008

Citation: 2008 HRTO 294

Indexed as: Davidson v. Lambton Kent District School Board

Human Rights Tribunal of Ontario

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Toronto ON M7A 2A3

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WRITTEN SUBMISSIONS

Peter Davidson, Complainant ) By his Litigation Guardian ) Michelle Davidson

Ontario Human Rights Commission ) Megan Evans Maxwell, Counsel

Ministry of Education, proposed Respondent ) Bruce Ellis, Counsel

INTRODUCTION

1In this complaint a student with Attention Deficit Hyperactivity Disorder (ADHD) alleges that the Lambton Kent District School Board (the Board) and a principal with the Board discriminated against him on the basis of a disability. The complainant alleges that he was treated unfairly by school officials because of his ADHD, including being denied access to accommodations through the Identification, Placement and Review Committee (IPRC). The complainant is represented by his mother, referred to as his litigation guardian.

2This interim decision deals with a request by the complainant to add the Ministry of Education as a respondent to these proceedings.

BACKGROUND

The scheme for special education in Ontario

3The scheme for special education in Ontario begins with section 8(3) of the Education Act , R.S.O. 1990, c. E.2, as amended, which requires the Minister of Education to “ensure that all exceptional children in Ontario have available to them, in accordance with this Act and the regulations, appropriate special education programs and special education services…”

4As recognized by the courts (see Wynberg v. Ontario 2006 CanLII 22919 (ON CA), [2006] O.J. No. 2732, leave ref’d [2006] S.C.C.A. No. 441) and this Tribunal (see Sigrist and Carson v. London District Catholic School Board et al, 2008 HRTO 14), the Minister does not directly provide education programs to students. As with the rest of public education in Ontario, special education services are delivered through a decentralized system of school boards established by the legislature to administer the education system at the operational level. The Minister fulfills his or her duties through providing a regulatory framework within which individual school boards exercise their responsibilities in the delivery of special education programs and services. This framework is established through such measures as regulations, policy and program memoranda and mandatory standards.

5The provision of services to students with special needs is largely dependent on their identification as an “exceptional pupil”, as defined in the Education Act. Subsection 1(1) defines an “exceptional pupil” with reference to five broad categories of exceptionalities: behavioural, communicational, intellectual, physical or multiple. School boards are required to establish Identification, Placement and Review Committees (IPRC’s) who have the responsibility, among other things, for identifying exceptional students. An IPRC meeting may be initiated by a school principal or by the parents of a student, on written request. In the event that an IPRC does not identify a student as exceptional, parents have a right of appeal (O.Regulation 181/98 made pursuant to the Education Act).

6The categories of exceptionalities have been more precisely defined by the Minister in its document, Special Education: a Guide for Educators (pp.A18-20). These definitions are also found in the Ministry’s policy document, Standards for School Boards’ Special Education Plans (2000). School boards are required to use these definitions in their provision of special education programs and services.

7Once a student is identified as exceptional, the school must develop an Individual Education Plan (IEP), outlining the special education programs and services to be provided to the student. Schools may also prepare an IEP for a student who has not been formally identified as exceptional.

THE COMPLAINT

8In the complaint filed on November 2, 2005, the complainant alleges that the Board infringed his right to equal treatment with respect to education services because of disability, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Examples of unequal treatment given include:

• Isolation in his classroom;

• Denial of review and consideration of medical and previous school records from other jurisdictions which identified learning weaknesses requiring accommodation;

• Failure by the school principal to respond to abusive treatment by students and teachers;

• Requirement to take daily medication in the presence of his classmates;

• Discipline applied in a discriminatory manner relative to other students;

• Refusal or failure to accommodate learning difficulties on the basis of his ADHD; and

• Advancement to Grade 5 despite failure to complete Grades 2, 3 and 4.

9The respondents dispute many of the factual assertions in the complaint. They take the position, among other things, that the complainant was assessed through the use of several assessment techniques none of which, at the time in question, found the presence of an exceptionality recognized by the Ministry of Education. It is said that the assessments did identify some areas of below-average performance and an Individual Education Plan (IEP) was accordingly developed in order to provide him with assistance. They therefore take the position that accommodations were provided to the complainant, even before the complainant was identified as exceptional.

10According to the respondents, during the time following the filing of the complaint, further testing of the complainant was done, including testing by a private psychologist arranged through the complainant’s mother. This led to a diagnosis of a specific learning disability in June of 2006, at a period when the complainant was not attending a school within the Board. Based on this, a meeting of the IPRC was subsequently convened in January of 2007. The respondents state that the IPRC resulted in no change to the program or supports already being provided to the complainant.

11In February 2008, the Ontario Human Rights Commission (the “Commission”) referred the complaint against the respondents to the Tribunal for a hearing. Following the referral, the complainant filed the Request for an Order During Proceedings (the Request) in which he asks the Tribunal to add the Ministry as a respondent.

12It is apparent from the materials that there are significant differences between the parties on the issue of the role of the complainant’s ADHD in the provision of education services to him. One of the areas of difference centres on the complainant’s assertion (found in the complaint) that the Board took the position that ADHD “is not a disability that they are required or permitted by the Education Act to address or accommodate.” The Board states that assessments of the complainant did not, at the time the complaint was filed, reveal an exceptionality recognized by the Ministry. However, the Board states that it responded to identified learning needs and accommodated those needs without an IPRC. The Board’s position, therefore, is that the complainant’s ADHD did not act as a barrier to the provision of appropriate education services to the complainant, that it provided appropriate accommodations without a formal identification and that it did not discriminate against him on the basis of his ADHD.

POSITIONS OF THE PARTIES AND THE PROPOSED RESPONDENT

13As indicated, following referral of this complaint to the Tribunal, the complainant filed a request to add the Ministry as a respondent. The Commission and the Ministry filed submissions in response to the request. The Commission supports the complainant’s request. The complainant, the Commission and the Ministry then filed reply submissions. The complainant filed a further reply to the Ministry’s submissions and the Ministry sought leave to file a response to those additional submissions. In the circumstances, I will consider the Ministry’s response. The Board has indicated that it takes no position and has filed no submissions.

14As the parties have not yet filed hearing briefs, the facts and issues in the complaint are described in the original complaint, the Board’s reply to that complaint, the Commission’s Case Analysis Report, the Board’s submissions on that Report, and the parties’ submissions on the request to add the Ministry as a respondent.

15The complainant’s mother states that her son entered a Board school in January 2003. She asserts that her son required special education services as an exceptional pupil but that the Board disagreed. As stated above, the Board takes the position that assessments did not support qualifying the complainant as an exceptional pupil at that time. The complainant’s mother states that her son’s ADHD was used as a justification to disqualify him from an IPRC and to prevent the identification of her son as exceptional. In the complaint, it is alleged that Board staff advised her that ADHD was not a disability they were required or permitted by the Education Act to address or accommodate.

16In the Request, the complainant’s mother states that following on dissatisfaction with the Board’s response to her concerns, she contacted Ministry staff in September 2003 asking for assistance. It is alleged that the complainant’s mother advised the Ministry of her son’s disability-related needs, and that his learning weaknesses were not considered by the Board to be needs that qualified for the definition of “exceptional pupil” based on the diagnosis of ADHD.

17The complainant’s mother states that Ministry staff “indicated that ADHD is not a disability recognized by the Ministry of Education. It is considered a medical condition not entitled to “exceptional pupil” status.” She further states that Ministry staff told her that “ADHD was considered a “health factor” and not applicable to the IPRC process”. Further in the Request, the complainant’s mother alleges that Ministry staff told her they “could only assist with “exceptionalities” recognized by the Ministry” and “there were no alternatives for ADHD children within the public system”.

18The Commission submits that the Ministry both directly and indirectly contributed to the complainant’s inability to access education without discrimination because of his disability. In its submission, the direct infringement is found in the Ministry’s Standards in which it prescribes the categories of exceptionalities qualifying a pupil for special education services. The Commission asserts that those categories resulted in the exclusion of the complainant from appropriate accommodations. It asserts that the complainant was denied an IPRC because under Ministry guidelines he could not be identified as “exceptional” due to the source of his disability (his ADHD) and he was therefore not granted access to appropriate accommodations.

19The Commission also asserts that the Ministry’s Standards are ambiguous and led to the decision by the Board to exclude the complainant from special education services.

20The Commission also takes the position that once the Ministry is notified that its Standards are being interpreted and applied in a discriminatory manner, the Ministry has a responsibility to ensure that students are not denied access to appropriate accommodation for reasons which may violate the Code. The Commission asserts that the Ministry directly discriminated against the complainant by refusing to provide his mother with assistance in response to her allegation that her child was not being accommodated at school.

21The Commission also refers to the Provincial Auditor’s 2001 Annual Report and the Commission’s Consultation Paper The Opportunity to Succeed; Achieving Barrier free Education for Students with Disabilities (October 2003). In its submission, the Ministry has failed to address concerns and recommendations raised in these reports about, among other things, review of special education practices to ensure individualization of accommodation, development of a mechanism for resolving disputes arising out of the accommodation process, training to educators on dealing with students whose disabilities cause them to be disruptive in school, and Ministry monitoring of its Professional Learning Program in relation to teacher effectiveness in dealing with students with disabilities.

22In response, the Ministry states that there is no evidentiary basis on which to conclude that there is any appearance that the Ministry infringed the complainant’s rights. The Ministry states that the complaint is about the identification of the complainant as an exceptional student and the nature of the services, which is a responsibility of the local school board. The Ministry does not engage in the identification or placement decision made by school boards. It is not enough to allege that conversations with Ministry staff establish an apparent violation of the complainant’s rights under the Code. None of the allegations regarding those conversations establish the appearance that the Ministry has infringed the complainant’s rights.

23The Ministry refers to section 1(1) of the Education Act, which sets out the five categories of exceptionalities in the definition of “exceptional pupil”: behaviour, communication, intellectual, physical and multiple. It submits that these broad categories are designed to address the wide range of conditions that may affect a pupil’s ability to learn. They encompass various conditions, impairments and barriers that lead to particular types of learning difficulties as characterized by effect, not diagnosis. There is no evidence that such effects, if caused by ADHD, are not included in one or more of the categories.

24The Ministry submits that based on the documents in relation to this complaint, the complainant underwent assessments and did receive special education services pursuant to an IEP. None of the documents include any evidence that services were denied to the complainant or that his ADHD “disqualified” him from receiving accommodation.

25Furthermore, the Ministry states that there is no evidence that it was ever involved in any decision relating to whether or not to hold an IPRC meeting for the complainant. While the Ministry was in communication with the complainant’s mother, it played no role in any of the decisions regarding the complainant’s IEP or the IPRC, consistent with the statutory framework.

26With respect to the conversations between the complainant’s mother and Ministry staff, the Ministry submits that there is no reliable evidence that its staff communicated anything other than the position that the category of exceptionality that a pupil with ADHD may fall into would be determined by a school board based on an individual assessment of the student’s strengths and needs and the application of the board’s criteria regarding the same.

27The Ministry, with one exception discussed below, does not take the position that it would be prejudiced by its inclusion as a respondent in this complaint.

DECISION

28This Request to add the Ministry as a party respondent was initiated before recent amendments to the Code came into effect. Those amendments maintain the Tribunal’s established jurisdiction to add a party to a proceeding before it, in section 36 of Part IV. The Tribunal’s Rules of Practice state that the Tribunal may add or remove a party, within the overriding goal of facilitating the fair, just and expeditious resolution of the merits of a complaint.

29Prior to the amendments, the Tribunal developed legal principles to be applied in addressing a request to add a party to a proceeding, in the context of the “old” section 39(2) of the Code which stated:

39(2) The parties to a proceeding before the Tribunal are,

(a.) the Commission, which shall have carriage of the complaint;

(b.) the complainant;

(c.) any person who the Commission alleges has infringed the right;

(d.) any person appearing to the Tribunal to have infringed the right…

(3) A party may be added by the Tribunal under clause (2)(d) or clause (2)(e) at any stage of the proceeding upon such terms as the Tribunal considers proper.

30These principles are still relevant. The Tribunal has said that in addressing a request to add a person as a party respondent, the Tribunal must be satisfied that there are facts alleged that, if proven, could support a finding that a proposed respondent violated the complainant’s rights. Although the Tribunal has used the description of “reliable evidence” in describing the nature of the evidentiary burden on such a motion, it has recognized that assessments of credibility and the weighing of evidence are properly done at a hearing, and not as part of determining this type of motion: Greenhorn v. 621509 Ontario Inc. (c.o.b. Belleville Dodge Chrysler Jeep), 2006 HRTO 22.

31The Tribunal also considers whether the addition of the proposed respondent would cause substantial prejudice to that party’s ability to make full answer and defence to the allegations. As well, in Santo and Claman v. Toronto Police Services Board, 2008 HRTO 56, the Tribunal stated that a decision on whether to add a new respondent must be analyzed with reference to the subject-matter of the complaint. In applying its powers to facilitate the fair, just and expeditious resolution of the merits of a complaint, the Tribunal must have regard to the impact of adding a party on the nature and scope of a complaint.

32On my review of the materials, I understand the allegations against the Ministry to be based on the following theories:

• The Ministry discriminated against the complainant in that its definitions of “exceptionalities” operated to exclude him from appropriate accommodations;

• The Ministry discriminated against the complainant by refusing to provide his mother with assistance or timely assistance in response to her allegation that her child was not being accommodated at school;

• The Ministry discriminated against the complainant by failing to address concerns about special education identified in the Provincial Auditor’s 2001 Annual Report and the Commission’s Consultation Paper The Opportunity to Succeed; Achieving Barrier free Education for Students with Disabilities (October 2003).

33On the first theory, there is no doubt that school boards, and not the Ministry, have the responsibility for delivery of education services, including special education services. Where there is a dispute about the provision of these services to a particular student, therefore, this is ordinarily a matter between the school board and the student and his or her parents. The Ministry’s statutory responsibilities do not require it to oversee the provision of services to a particular student, nor do they lead to holding it responsible under the Code for the actions of school boards in the provision of services to a particular student.

34At the same time, it must be recognized that the Ministry does have a role in how a Board exercises its responsibilities even in relation to particular students. The issue raised in the case before me is whether the Ministry’s definitions of exceptionalities, which are the basis on which this School Board made decisions about the provision of services to the complainant, acted as a barrier to the proper accommodation of his disability. Those definitions do not specifically preclude a pupil with ADHD from access to special education services. However, the complainant and Commission assert that they effectively led the Board to refuse or fail to convene an IPRC, operating to exclude the complainant from required accommodations and denying him access to the review and appeal processes available under the Education Act. The issues as they are framed, therefore, relate directly to matters which are within the responsibility of the Ministry – the framework within which special education services are provided, and the Standards which set preconditions for access to special education services.

35I recognize that there are important factual disputes underlying the resolution of these issues. The Board, as indicated above, takes the position that accommodations were provided even though assessments did not establish that the complainant qualified as an exceptional student. There may also be factual issues about whether Ministry staff supported the Board’s interpretation of the standards, and the effect, if any, of the Ministry’s views on the Board’s actions. But the existence of these factual disputes should not preclude the complainant and the Commission from putting the case forward that the definitions of exceptionalities that the Board was required to apply, as established by the Ministry, prevented or delayed the complainant from receiving required accommodations. Without having heard the evidence, I cannot say that there is no possibility that the Ministry’s actions could be found to have caused or contributed to the alleged discrimination.

36The Ministry has emphasized what it terms a lack of reliable evidence in its submissions. It states that the complainant’s unsubstantiated allegations regarding phone calls with Ministry staff cannot be said to be “reliable evidence” for the purpose of adding the Ministry as a party to the complaint. It also states that the allegations of the complainant are contradicted by documentary evidence provided by the Ministry. However, as recognized by the Tribunal in Greenhorn (above), the test of “reliable evidence” must be applied having regard to the context in which a motion to add a party is brought, where there is indeed no “evidence” before the Tribunal, and only allegations. Assessments of credibility and the weighing of evidence do not occur at this preliminary stage. In this context, I am satisfied that there are facts alleged which, if true, could support a finding that the Ministry caused or contributed to discrimination against the complainant.

37This is not to suggest that even if the facts were established, they would be sufficient to lead to a finding of a violation of the Code. Beyond the factual issues, there are significant differences between the parties about the legal meaning and conclusions to be drawn from the facts. There are real differences between the parties, for example, about the interpretation of the Ministry’s definitions of exceptionalities. I understand the Ministry’s position to be that these definitions are, in a sense, “neutral” with respect to the complainant’s access to special education services. Its position is that under a proper application of the definitions, the complainant has the same access to special education services as another student without ADHD. The Commission and the complainant take the position that the definitions are not neutral and, in fact, resulted in the failure to properly accommodate the complainant’s ADHD.

38There are a number of difficult and nuanced issues raised by the complaint and I am satisfied that they should not be determined in the context of a request to add a respondent to the proceedings. At the end of the day, the Tribunal may decide that the Ministry’s standards did not contribute to or cause any discrimination against the complainant, but I am satisfied that there is a sufficient basis to the allegations that they should be heard by the Tribunal. I find that the complainant and the Commission have alleged acts or omissions by the Ministry, within the Ministry’s areas of responsibility that caused or contributed to the discrimination against the complainant. Although the theory of liability may be novel, although it may be difficult to prove, it cannot be said that it is insufficient to ground potential liability.

39The second theory put forward by the Commission and complainant in support of this request is that the Ministry caused or contributed to the discrimination against the complainant by failing or refusing to assist his mother when she complained that her son was not being properly accommodated at school. The parties agree that there were a number of phone conversations between Ms. Davidson and Ministry staff from September of 2003 to April of 2006. In these phone calls, Ms. Davidson informed Ministry staff of her dissatisfaction with the Board’s response to her son’s learning difficulties. It is not disputed that staff of the Ministry were in contact with Board officials on 16 occasions between November of 2005 (after the complaint against the Board was filed) and April of 2006, to discuss the complainant’s situation. The Commission asserts that “while the material submitted by the Ministry show that some steps to respond to Ms. Davidson’s requests may have been taken by the Ministry….these steps were insufficient and were not undertaken in a timely manner”.

40The Ministry submits that one role of its staff is to facilitate the resolution of issues which may develop between parents and school boards in a way that is mindful of the respective roles and responsibilities of the Ministry and school boards. However, as stated above, it takes the position that it played no role in any of the decisions regarding the complainant’s IEP or the IPRC, consistent with the statutory framework that provides for those decisions to be made by those who will serve the student directly.

41The Commission relies on the Tribunal’s decision in Sigrist and Carson in its submission that the Ministry’s alleged failure to assist or failure to assist in a timely manner is a basis for potential liability.

42On the facts as alleged, I am not satisfied that it can be shown that alleged omissions in the actions of Ministry staff in its role as facilitator (as distinct from its role in setting the standards applied by the Board) caused or contributed to the discrimination as described in the complaint. Any connection between the Ministry’s alleged failure to act and decisions made by the Board is speculative, and not a sufficient basis on which to add the Ministry as a respondent.

43The addition of the Ministry as a party respondent on the basis of this second theory would also result in a significant shift in the scope and nature of this complaint as framed, and would not promote the fair, just and expeditious resolution of the issues at the heart of the complaint.

44The third theory of liability put forward in support of this request is the Ministry’s alleged failure to address concerns and recommendations about special education identified in reports by the Provincial Auditor and by the Commission. I have described the Commission’s submissions on this point above. On my review of those submissions and the other material before me, I find that no adequate nexus has been established between the allegations about the Ministry’s lack of response to the Commission’s recommendations, and the provision of services to the complainant. Again, any link between what the Commission alleges to be the Ministry’s inadequate response at a systemic level to issues regarding special education, and any specific actions taken in relation to the complainant, is speculative. I therefore do not find this theory of liability to provide a sufficient basis to add the Ministry as a party respondent.

45Before concluding, I will address the contention of the Ministry that it has been prejudiced by what it describes as new allegations made in the submissions. Briefly put, during the course of the submissions on this request, the complainant clarified the identity of the Ministry staff member with whom a specific conversation was held in October 2003. Even accepting the Ministry’s submission that it is prejudiced in responding to those new allegations, they are not essential to my decision to add the Ministry as a party respondent.

46I therefore grant the request to add the Ministry as a party respondent to this complaint, on the limited basis described above in paragraphs 33 to 38, under the name “Her Majesty the Queen in right of Ontario as represented by the Minister of Education”.

47The Registrar will contact the parties to reschedule the Initial Conference Call in this complaint.