Griffiths v. Toronto District School Board, 2009 HRTO 545

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Fred Griffiths by his next friend Stephanie Griffiths

Applicant

-and-

Toronto District School Board

Respondent

INTERIM DECISION

Adjudicator: David A. Wright

Date: April 30, 2009

Citation: 2009 HRTO 545

Indexed as: Griffiths v. Toronto District School Board

APPEARANCES

Fred Griffiths by his next friend ) David Baker, Counsel and Stephanie Griffiths, Applicant ) Balpreet Singh Boparai, ) Student-at-law

Toronto District School Board, Respondent ) Brenda Bowlby and ) Bushra Rehman, Counsel

INTRODUCTION

1This Interim Decision deals with a Request to Expedite Proceedings and a Request for Interim Remedy. The Tribunal found in a Case Assessment Direction that proceedings would be expedited, advising that reasons would follow. This Interim Decision sets out those reasons and determines the Request for Interim Remedy.

2A hearing was held on March 23, 2009. Following the hearing, the Tribunal issued its decision in TA v. 60 Montclair, 2009 HRTO 369. The Tribunal sought written submissions from the parties regarding this decision. Each party has made various written submissions since that time to which the other has objected. In making this decision, I have not taken into account any submissions made since the hearing other than those that relate to the TA case.

OVERVIEW

3The applicant is eight years old and in his grade three year. He has been diagnosed with various disabilities that affect his learning and behaviour in school. He attended a private school in grade one, and his mother organized and staffed a home school program for him in grade two.

4This year, she determined that the best education for him was in the public schools. The Application alleges that the respondent has discriminated against the applicant on the basis of disability in the provision of educational services and failed to accommodate his needs.

5The applicant is not currently attending school. The respondent is only offering one hour of schooling per day, on the basis that as a result of his disabilities, the applicant should gradually transition to longer hours at school. It believes that he should be offered “preferred activities” rather than an academic program so that he can work on school readiness skills and his serious behavioural issue can be addressed. Attempts to integrate the applicant into school during the course of this year have led to serious incidents that have affected the applicant, staff and other students.

6The applicant’s mother takes the position that offering him one hour of schooling per day focusing on preferred activities is discriminatory. She believes that the respondent Board should transition him quickly to a full day, should not focus on preferred activities, and states that he would be able to attend for a full day if he had the proper supports and atmosphere, which the respondent has not provided. As a result of her concerns, she has not sent her son to school since the end of February. The allegations in the Application, broadly stated, are that the accommodations offered by the school board and the lack of speed with which it has acted in putting them into place violate the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

7I make several general observations at the outset. First, the seriousness of the situation is obvious. An eight-year-old boy is not attending school. The evidence before me suggests that this may have significant consequences for his development. Second, it is apparent to me that the applicant’s disabilities present difficult and complicated challenges for his family and the educators who work with him. The applicant’s behavioural issues have had and may have significant effects on them and on other children in any educational institution he attends.

8The issue of whether the respondent has failed to accommodate the applicant’s disability to the point of undue hardship will be determined following a hearing on the merits, and evidence about the needs of the applicant, the supports offered, and the interactions between him, his mother and the school board will doubtless form a significant part of the evidence at that hearing. In this Interim Decision, however, I need only examine the present situation as indicated in the evidence that has been placed before me through declarations.

9I must consider the Interim Remedy requested, which is essentially that I order that the applicant be integrated into school in the manner and at the pace that his mother believes is appropriate. There are no alternative requests for remedies such as orders that the parties meet to negotiate the applicant’s integration into public school or that they report to the Tribunal on their progress, or the appointment of a neutral expert to be involved in the process. Although I raised various possibilities during the hearing, the applicant’s counsel made no alternative requests.

SUMMARY OF CONCLUSIONS

10I have reached the following conclusions. This Application has a particular urgency as compared with other Tribunal applications that justifies an expedited hearing. However, the evidence before me does not show that the Interim Remedy requested on behalf of the applicant – that he be quickly transitioned to full days of school and away from “preferred activities” – would be just and appropriate. The expert evidence does not establish that the remedy sought would enable the applicant to effectively access educational services and would therefore be in his best interest. The dispute between the parties at this time is about how the applicant’s transition to full-time schooling in the public school system should occur. The evidence does not show that it would be in the child applicant’s best interest, and therefore just and appropriate, to order the particular transition requested.

REquest to expedite

11I deal first with the request to expedite. The parties both agreed to expedited proceedings. However, the consent of the parties, while a factor the Tribunal will consider, is not determinative. As the Tribunal stated in Martinez v. 2012342 Ontario, 2009 HRTO 111 at para. 7:

Even where the parties to a particular dispute consent to having it dealt with on an expedited basis, the Tribunal has an interest in ensuring that proceedings are not expedited unless the circumstances warrant.

12The approach generally followed by the Tribunal is set out in Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53 at para. 9:

For a request to expedite to be granted, 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.

13The particular urgency of this situation is readily apparent and confirmed by the expert evidence. The respondent is prepared to offer the applicant only one hour of schooling at present, which is alleged to be discriminatory. As a result of her concerns about the educational services offered by the Board, the applicant’s mother does not feel it is appropriate to send her child to school. The potential effects of the applicant’s absence from school are outlined in a letter from Dr. Wendy Roberts, a developmental paediatrician who has been treating the applicant since he was six months old. She states that the longer he is out of school, “the more severe all his problems will become”. She says that this is “a critical time in his education” and if he does not attend school, “[h]e will continue to regress developmentally”.

14If it is found that discrimination has occurred and continues to occur, it is important that a remedy be put into place as quickly as possible. Accordingly, the Tribunal granted the Request to Expedite pursuant to Rule 21. Disclosure has already been completed by dates agreed upon by the parties, and the hearing shall be held in May and June 2009.

INTERIM REMEDY

15The Interim Remedy sought is as follows:

[The applicant] immediately requires a full time Grade 3 educational program provided by the Toronto District School Board. [He] needs to be transitioned back into a small classroom of no more than three students, all of whom have verbal abilities. [He] requires one-on-one support with the assistance of a Child and Youth Worker with training in [his] unique disabilities including Asperger’s syndrome, Attention Deficit/Hyperactivity Disorder/Combined Type, and Learning Disabilities. The Child and Youth Worker also needs to be able to provide for [his] personal care, including going to the bathroom. [He] also needs a break out room so that he has a safe and quiet place to retreat in the event of any issues of anxiety. Further, [he] requires accommodations with his transportation to and from school by way of a Child and Youth Worker, as he cannot ride the school bus on his own without one-on-one support.

In oral argument, counsel for the applicant emphasized that the central aspects of the remedy requested were: (i) that the Tribunal order that the applicant be given full-time schooling within two weeks; (ii) that the Tribunal order that the applicant not be offered “preferred activities” but more structured learning; and (iii) that the Child and Youth Worker working with the applicant have particular qualifications.

16Rule 23.2 governs Interim Remedies and states as follows:

23.2 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.

17In TA, supra, the Tribunal made the following general comments about Interim Remedies, at paras. 18 – 27:

If the purpose and object of the Code is remedial, then it follows that the power to award interim remedies should focus on furthering that remedial objective. Generally this will mean asking whether an interim remedy is necessary to facilitate and ensure the Tribunal is able to award a complete, appropriate and effective remedy at the end of a hearing, should a violation of the Code be found.

The authority to grant interim remedies is not a power to be exercised only where, as in the common law context, the applicant will suffer irreparable harm in the sense that damages could not provide adequate compensation. To require irreparable harm in that sense would distort the true remedial objects of the Code by signalling that monetary damages are the preferred, or can be a complete remedy for a Code violation. The common law test on injunctions developed in the context of civil disputes, where Courts are reluctant to award specific performance remedies, and claims for alleged wrongs are quantified in terms of damages. The traditional common law approach would not properly reflect the broad remedial intent of the Code. It is noteworthy that the requirement to demonstrate “irreparable harm” is not one of the elements in Rule 23.

At the same time, it will not be sufficient for an applicant seeking an interim remedy to simply assert a particular urgency in obtaining the ultimate relief, or that they may suffer financial hardship if an interim remedy is not provided. They may be factors to consider but, again, the focus of the inquiry is whether an interim remedy is necessary to ensure the Tribunal will be able to provide a full, effective and appropriate remedy should the application be decided in favour of the applicant, or is otherwise required to give effect to the remedial objects of the Code.

The Tribunal should also develop an “indigenous” approach which reflects the remedial objects of the Code, and the requirement to resolve applications fairly and expeditiously.

18Recognizing the extraordinary nature of Interim Remedies, the Tribunal stated as follows at para. 29:

An applicant seeking an interim remedy will have a significant onus to meet to demonstrate that the Request meets the three elements in Rule 23.2 and is necessary to further the remedial objects of the Code.

19I assume, without deciding, that the first two elements of Rule 23.2 have been established. However, the evidence filed by the applicant does not meet the “significant onus” to establish that the Interim Remedies requested would be just and appropriate.

20The applicant’s evidence consisted of his mother’s declarations and included a report from Dr. Sharon Marcovitch, Registered Psychologist, dated June 2007 and a letter from S. Wendy Roberts, MD, dated February 3, 2009. In light of the fact that Dr, Marcovitch’s report is nearly two years old, I am unable to give it any weight in these circumstances, as it does not reflect the applicant’s present circumstances, nor does it reflect the events of this school year or comment on the different perspectives of the applicant’s mother and the respondent.

21Dr. Roberts’s report includes a description of the applicant’s condition, and states that he must be continuously monitored and engaged at all times, including at home and in an educational environment. This must be conducted, she says, by a person who has knowledge and expertise in dealing with children with Asperger Disorder. She states that he “requires” a small classroom, of no more than 5 or so other high functioning children. She states that he has a great aptitude for learning and needs the supports in order to succeed. The report emphasizes the importance of him returning to a classroom setting and the effects if this does not occur.

22What Dr. Roberts’s report does not address, however, is how the transition to full-time schooling should occur, which is the essence of the present dispute between the parties. She makes no reference to whether a rapid transition to full-time schooling is in the applicant’s interests, or whether a “preferred activities” approach or a rapid move to a more structured program is appropriate. There is no suggestion that she is aware of the events that have occurred during the attempts to return the applicant to school this year nor does she offer suggestions for how the applicant can be successfully integrated into school in light of them.

23There is, therefore, no up-to-date expert evidence that supports the assertion that it would be in the applicant’s best interest to quickly move to full-time schooling or away from “preferred activities”. In such circumstances, I cannot conclude that it would be just and appropriate to make interim orders in this regard. In light of my conclusion that there is no evidence that such an order would be effective in accommodating the applicant’s disabilities, I need not consider the possible effects on the respondent, its employees and other students as argued by the respondent.

24I also do not believe that it would be just and appropriate to make the remaining interim orders requested by the applicant, which essentially constitute a request that the Tribunal determine at this interim stage the details of the applicant’s accommodation. I do not believe that such remedies are either appropriate or necessary to fulfil the remedial objects of the Code, particularly in the face of the outstanding dispute over how the applicant should be integrated into the public school environment. The hearing will be completed within two months, at which time the Tribunal will be able to determine the appropriate remedy, based on full evidence, if discrimination is found.

25Accordingly, the Request for Interim Remedy is dismissed.