E.P. v. Ottawa Catholic School Board, 2009 HRTO 499

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

E.P. by her litigation guardian, Wendy Fournier

Applicant

-and-

Ottawa Catholic School Board and Anne Marie Duncan

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: April 24, 2009

Citation: 2009 HRTO 499

Indexed as: E.P. v. Ottawa Catholic School Board

INTRODUCTION

1This is an Application filed under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The complaint which underlies the present Application was filed with the Ontario Human Rights Commission on October 9, 2007.

2This Interim Decision addresses requests by the applicant to add the Ministry of Education as a party to these proceedings, a request to keep the applicant’s name confidential and a request to expedite the Application.

3The applicant has been identified by the respondent school board as a student with special needs, and as having multiple exceptionalities. The specifics of her diagnosis are not relevant to this decision. Her mother acts as her litigation guardian.

4The central dispute between the applicant and the respondent school board relates to the nature of the placement, programs and services offered by the respondent and whether the respondent school board has adequately accommodated the applicant’s special needs.

Request for Confidentiality

5The applicant requested that the Tribunal use the applicant’s initials rather than her full name, that no information be published that would identify the parties, witnesses or any minor person involved in these proceedings, and that all evidence and documents be kept confidential. The respondents oppose this request.

6The applicant emphasized that sensitive medical information will be revealed, that the applicant is a minor, that the details of the alleged discrimination would be highly embarrassing and result in a loss of self-respect and dignity, and that information revealed could continue to haunt the applicant in adulthood.

7The provisions of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”) apply to proceedings before the Tribunal, unless those provisions conflict with the Code itself, the Code’s regulations, or the Tribunal’s Rules (section 42 of the Code). Section 9 of the SPPA calls for public hearings, as follows:

9.(1) An oral hearing shall be open to the public except where the tribunal is of the opinion that,

(a) matters involving public security may be disclosed; or

(b) intimate financial or personal matters or other matters may be disclosed at the hearing of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public,in which case the tribunal may hold the hearing in the absence of the public.

8In addition, the Tribunal’s Rules applicable to this proceeding provide as follows:

5.10 The Tribunal’s proceedings, other than mediation, are open to the public, except when the Tribunal determines otherwise.

5.11 The Tribunal may make an order to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so.

9Tribunal proceedings are ordinarily open to the public. Part of the principle of openness is that the parties to the proceeding are identified. Documents that are made exhibits are accessible to members of the public and become part of the hearing record. The Tribunal’s decision, naming the parties and referring to the exhibits as necessary, is public. Tribunal decisions are reported in two legal reporter services, the Canadian Human Rights Reporter (CHRR) and on the website of the Canadian Legal Information Institute.

10Any order of confidentiality, whether to keep the name of any party or witness undisclosed or to keep any exhibit confidential, must be restricted, in my view, to circumstances that are for some reason exceptional. That is the assumption behind the section of the Statutory Powers Procedure Act section noted above, and it must be the basis of interpreting Rule 5.11. Otherwise, the principles of openness and transparency, fundamental to this province’s legal system, would be seriously undermined.

11This Tribunal commonly hears cases in which sensitive and otherwise private medical information is received through oral testimony and documents such as reports from health professionals. That is in the nature of applications under the Code, a large proportion of which involve individuals who are alleging discrimination on the ground of disability. Some of these cases involve applicants who are minors. The Tribunal has not applied any blanket rule ordering any type of confidentiality for applicants with disabilities or for applicants who are minors.

12In my view, there is nothing about this applicant, or about the facts as alleged in the complaint, or about the nature of the likely testimony or documentary evidence, that persuade me that the normal standards of a public hearing should not apply.

13While the material from health professionals that is likely to be put in evidence in this case may be of a sensitive nature from the point of view of the applicant, there is no indication that it is any more sensitive or embarrassing than the evidence in many other cases, including those involving minors.

14I have considered the more limited request to keep the applicant’s name and the name of her mother confidential. Again, in my view, the nature of this case does not justify that level of departure from the fundamental principles of an open and transparent legal system.

15The Requests for confidentiality are denied. The Tribunal will however refrain from including personal information related to the applicant in its decisions unless it is necessary to the determination of the issues at hand consistent with Tribunal’s practice of referring only to those facts that are necessary to explain the reasons for the decision.

Request for an expedited proceeding

16The applicant requested that the Application be processed on an expedited basis.

17The Tribunal is committed to the fair, just and expeditious resolution of the merits of all transition applications its process is designed for the timely resolution of all applications. Thus, when requesting an expedited proceeding,

(…) the applicant must demonstrate that the circumstances are truly urgent, requiring the resolution of the human rights dispute in a particularly rapid manner as compared with the time required to complete the Tribunal’s regular process. Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53.

18In this case, the Application relates to the period between September 2006 and 2007 when the applicant was a student at the respondent school board. From September 2007, the applicant enrolled elsewhere. The remedies sought (which are not finalized) do not presently include a request to be returned to the respondent school board and comprise primarily claims for monetary compensation. Although the applicant has indicated that she continues to experience post 2007 discrimination and reprisals, I am not satisfied that she has demonstrated a need for a resolution in a particularly urgent manner.

19Therefore, the Request to Expedite is denied.

Request to add the Ministry of Education as a party

20The applicant seeks to add the Ministry of Education (the “Ministry”) to the proceedings on the basis that the Ministry engaged in direct discrimination by failing to take timely action to assist the applicant’s parent in resolving their concerns about the respondent school board’s alleged failure to appropriately accommodate the applicant’s needs. She also alleges that the Ministry indirectly discriminated against her by failing to take action to ensure that the respondents met their obligations under the Education Act, R.S.O. 1990, c. E.2 as amended (“Education Act”), failed to provide suitable curriculum and failed to regulate class size and teacher qualifications which resulted in the discrimination experienced by the applicant.

21The Ministry opposes the request to be added as a party on the basis that the applicant has not met the evidentiary threshold to establish an appearance of an infringement of a right: Payne v. Otsuka Pharmaceuticals Co Ltd., 2001 CanLII 26231. The Ministry does not allege any prejudice if it were to be added as a party.

22In Ontario there is a division of responsibility over education (including special education) between the Ministry of Education and the school board.

23School boards are responsible for providing individual assessments and special education plans and programs for students and for implementing appropriate accommodations. The Ministry is responsible for providing the regulatory framework within which individual schools boards exercise their responsibility.

24The Ontario Court of Appeal recognized this division of responsibility in Wynberg v. Ontario, 2006 CanLII 22919 (ON C.A.) at paragraphs 87 and 88:

In general, however, the Minister of Education does not directly provide education programs to students. (….) This reflects the broad scheme of the Act which provides for a decentralized system of local school boards managed by elected trustees to administer the educational system at the operational level.

The Act requires boards to ensure that their exceptional pupils get the special education programs and services they need, either by providing them directly or by contracting with other boards to do so.

25In my view, the decision of the British Columbia Human Rights Tribunal decision in Moore v. BC (Ministry of Education and School District No 44), (2005) 2005 BCHRT 580, 54 CHRR D/245 (reversed on other grounds 2008 BCSC 264, [2008] BCJ No. 348) relied upon by the applicant for support that the Ministry is responsible for the provision of education services is not applicable in Ontario.

26In light of the division of responsibility between the Ministry and school boards in Ontario, the Tribunal has declined to add the Ministry as a party to Applications concerning the provision of special education programs and services except in very limited circumstances, such as where the allegation is that the Ministry has not responded to parents’ concerns in a timely manner (Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14), or where the allegation, supported by evidence, relates directly to an action or omission within the Ministry’s statutory mandate (Davidson v. Lambton Kent District School Board, 2008 HRTO 294).

Direct Discrimination by failing to take timely action

27The applicant identified several attempts she made between November 2005 and November 2008 to seek the assistance of the Ministry. She also asserted that the Ministry responded on every occasion (except one regarding a communication in September 2007), although their intervention fell short of achieving the particular accommodations or solutions she wanted. Assuming the alleged narrative can be established on the evidence, I am not satisfied that the applicant has made out an appearance that the Ministry’s alleged responses amount to a failure to respond in a timely manner or contributed the alleged failure by the school board to accommodate the applicant’s special education needs. This case is factually different from the circumstances in Sigrist and Carson, above.

Failure to provide adequate curriculum, teacher qualification requirements, funding and range of placements

28The applicant asserts that the Ministry is responsible for the development of curriculum and the Ministry has failed to develop a specific curriculum for gifted programming and for Learning Disabled programming. In addition, they failed to ensure that the respondents provided a Gifted and Learning Disabled curriculum which directly affected the applicant.

29The applicant asserts that she has poor manual dexterity and requires keyboarding skills and computer classes to support her learning. She asserts that the Ministry failed to provide a curriculum and assessment standards for computer courses and also failed to ensure that teachers assigned to assist special needs students have adequate computer knowledge. I will deal with the argument relating to teacher qualifications later.

30Essentially, the applicant asserts that that she was not appropriately accommodated by the school board, in part because the Ministry failed to live up to its obligations to provide or require adequate curriculum development by the respondent school board.

31I fail to see how the Ministry’s action contributed to the respondent school board’s alleged failure to accommodate. The Education Act gives the Minister the authority to “prescribe the courses of study that shall be taught and the courses of study that may be taught in the primary, junior intermediate and senior divisions”, to issue curriculum guidelines and to require that courses of study be developed from those guidelines. The Minister also has the authority to establish procedures for approving courses of study that are not based on these guidelines and to either approve or permit school boards to approve such courses of study. The Ministry produces curriculum policy for all levels of instruction and for various subjects, as required. School boards are responsible for the implementation of curriculum requirements and teachers are responsible for developing appropriate instructional strategies and appropriate methods for assessing and evaluating student learning, including for those students with special education needs who are in their classes.

32The applicant has not satisfied me that the Ministry’s failure to prescribe the particular curriculum described by the applicant contributed in any way to the school board’s alleged failure to accommodate her needs. There is sufficient flexibility in the Ministry curriculum policy and guidelines for each school board to develop appropriate curriculum for all students. It is the responsibility of the respondent school board to offer a curriculum that meets Ministry standards in a manner that is appropriate to the applicant’s needs.

33The applicant alleges that the Ministry has failed to provide adequate funding for Special Education Grants for exceptional pupils and failed to require the respondents to maintain a separate accounting and inventory for special education financial resources. The resulting impact was that the applicant was not provided with equipment and software recommended and required to support the applicant’s learning needs. The applicant has failed to make a connection between the respondent school board’s alleged failure to provide appropriate assistive devices and the Ministry’s implementation and administration of the Special Education Grant. For example, the applicant does not assert that requested equipment was denied by the respondent school board because the Ministry refused to provide funds from the Special Education Grant. In my view, the provision of assistive devices to support the applicant’s learning needs is the responsibility of the respondent school board.

34The applicant asserts that the Ministry requires school boards to offer a range of placements including full-time special education classes (a congregated class) and special education class with partial integration. The respondent school board does not offer these type of placements, which are the applicant’s preferred type of placement. The applicant alleges that the Ministry’s failure to enforce their regulations on this matter adversely impact on the applicant as she did not have access to the required range of placements.

35The respondents dispute the applicant’s assertion that boards are required to offer a specific range of placement and asserts that the Education Act does not require a placement option of self-contained classes for exceptional students. Rather, boards are required to describe the range of placements that is available at board schools and describe the alternative that are provided when the needs of a student cannot be met within the board’s range of placements. The documentary evidence submitted by the parties supports the respondents’ position on this matter.

36Does the failure of the Ministry to require that all school boards provide a specific range of placements, including the placements desired by the applicant, give rise to the appearance of a breach of the Code by the Ministry? In my view, it does not. The essence of the Application is that the applicant was not appropriately accommodated. Part of the argument put forth by the applicant at the end of the day may be that the respondent school board’s philosophy not to offer full-time special education classes amounts to a failure to accommodate. However, the Ministry is not responsible for the manner in which the school board chooses to meet its obligations to accommodate the applicant’s needs.

37The applicant asserts that the Ministry has regulated the class size for congregated classes for various exceptionalities and has regulated the teacher qualifications for teaching these classes; however, it has failed to regulate the number of special education students that can be placed in a regular classroom and failed to require that regular classroom teachers who are teaching special education children be qualified to teach these children. As the respondent school board has a large number of children with special needs in a regular classroom (including the applicant at the time), the failure to regulate class size and teacher qualification directly contributed to the respondent school board’s failure to accommodate the applicant’s educational needs.

38I am not satisfied that the applicant has established a sufficient nexus between the Ministry’s failure to specifically regulate class size and teacher qualifications in regular classrooms where there are also children with special education needs contributed to the respondent school board’s alleged failure to accommodate the applicant’s educational needs. It is the school board’s responsibility to ensure that that the needs of its students with special needs are met, both with respect to the provision of appropriately qualified teachers (including any required computer skills) and a learning environment conducive to their learning styles (which may include class size).

39For the above reasons, the request to add the Ministry of Education to these proceedings is denied.

40Each party is directed to advise the Tribunal within 10 days of the date of this Interim Decision whether they wish to participate in mediation or proceed directly to a case resolution conference.