Zavadsky v. Ontario (Education), 2009 HRTO 756

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Leonid Zavadsky by his litigation guardian Vyacheslav Zavadsky

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Education

Respondent

DECISION

Adjudicator: Kaye Joachim

Date: June 4, 2009

Citation: 2009 HRTO 756

Indexed as: Zavadsky v. Ontario (Education)

written submissions by

Leonid Zavadsky, Applicant ) Vyacheslav Zavadsky, ) Litigation Guardian

Her Majesty the Queen in Right of Ontario as ) represented by the Minister of Education, ) Janet Pounder, Respondent ) Counsel )

1This is an Application filed July 2, 2008 under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The purpose of this Decision is to determine the respondent’s request for early dismissal of the Application. The parties waived their right to make oral submissions and this Decision is based on the written submissions filed by the parties.

3The applicant is a child diagnosed with Autism Spectrum Disorder. In early 2006 the applicant’s father registered him for junior kindergarten with the Ottawa District School Board (the “School Board”) and began discussions with the School Board about setting up an appropriate education plan for the applicant. The applicant’s father was not satisfied with the School Board’s proposed plans and asserts that the responsibility for the School Board’s failure to provide appropriate special education plans and services lies with the Minister of Education (the “Minister”). More specifically, the applicant’s father asserts that the Ministry failed to provide or fund, directly or through the School Board, a comprehensive educational program appropriate for the applicant’s needs. He also asserts that the range of educational programs offered by the School Board at that time was not adequate to accommodate his son’s needs because it did not include intensive intervention.

4The Minister is the sole respondent to this Application. The respondent asserts it is not the appropriate party to this Application, as the responsibility to provide appropriate education plans and services lie with the Board.

Effect of Wynberg and Sagharian

5In my view, this claim is virtually indistinguishable from the case of Wynberg v. Her Majesty the Queen in Right of Ontario, 2005 CanLII 8749 (ON SC), [2005] O.J. No. 1228 (SCJ); 2006 CanLII 22919 (ON CA), [2006] O.J. No. 2732 (CA) reversed; leave refused 2006 SCCA No. 441 (“Wynberg”).

6The Wynberg case involved a group of Ontario families with autistic children who sought declarations that the Province on Ontario (specifically the Ministry of Community and Social Services and the Ministry of Education) violated the Charter of Rights and Freedoms, (the “Charter”) by failing to provide intervention programs in the education system or to children aged six and older. In 1999, the Ministry of Community and Social Services announced the Intensive Early Intervention Program (IEIP) which provided Intensive Behaviour Intervention (IBI) services for children with autism between the ages of two and five. The plaintiffs submitted that the failure to provide IBI either as a health care service or as an educational service violated sections 7 and 15 of the Charter. With respect to the section 15 equality argument, the plaintiffs alleged they experienced discrimination on the grounds of both age and disability. The trial judge held that the Province of Ontario violated the plaintiffs’ rights under s. 15 of the Charter on the basis of age with respect to the age cut-off in the IEIP and on the basis of disability with respect to education programs and services. The Ontario Court of Appeal overturned both findings and leave to appeal to the Supreme Court of Canada was denied. For the purpose of this Decision, my focus is on the Court of Appeal’s analysis of discrimination on the basis of disability in the provision of education services.

7The Minister’s statutory responsibility to ensure that all exceptional children (children with disabilities) in Ontario have available to them appropriate special education programs and services, is shared with the schools boards:

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: Wynberg, paragraphs 87 and 88.

8One of the issues before the Court in Wynberg was whether the Ministry of Education discriminated against the plaintiffs, contrary to section 15 of the Charter because of disability (autism spectrum disorder) by failing to provide IBI as an appropriate special education program or service within the school boards.

9The Court of Appeal held that in the context of the division of responsibilities between the Ministry and the school boards, the plaintiffs had failed to establish that the benefit claimed, IBI, was the only appropriate special education program for exceptional pupils with autism and had also failed to establish that IBI treatment would fit within the context of the public school system. The Court also found that the plaintiffs had not established that the appropriate comparator group did receive the “appropriate educational services” denied to the plaintiffs. The Court concluded that the plaintiffs had failed to establish a prima facie case of discrimination on the basis of disability contrary to section 15 of the Charter.

10The applicant sought to distinguish Wynberg on the basis that the benefit sought in that case was IBI consistent with the IEIP guidelines, whereas the applicant in this case is seeking any intervention

(…) for which there is scientific or empirical evidence that it can teach an autistic person basic language, behavioural and attentive skills and provide this person with a meaningful way to access curriculum.

11This is not a meaningful distinction. In Sagharian v Ontario 2008 ONCA 411, [2008] O.J. No. 2009 C.A. (“Sagharian”), the plaintiffs also sought to distinguish the binding effect of Wynberg on the basis that they were seeking some other (undefined) form of intervention which could be implemented within the school system. The Court of Appeal struck the claim because the plaintiffs failed to identify with any precision the specific benefit they were seeking. The Court stated “it is essential that the appellants plead the benefit with precision. The absence of precision will be fatal to the appellants’ claim.” The Court also struck the claim of discrimination on the basis of disability, on the basis that Wynberg was a binding precedent preventing the plaintiffs’ claim, without prejudice to the plaintiffs’ right to file revised pleadings.

12The Court of Appeal in Sagharian recognized that it would be possible for a party to claim an alternative benefit or fill the evidentiary gaps set out in Wynberg. In particular, if the precise intervention sought could be made available within the school setting or the evidentiary gap of differential treatment with respect to a proper comparator group could be filled, the claim may be allowed to proceed:

25However, it is possible that the appellants can plead a claim based upon the respondents’ duty to accommodate and a denial of that duty. That denial would be based on the comparator group of other children with disabilities in the communication category, including children who are deaf, blind or deaf/blind. Wynberg specifically found an evidentiary gap regarding the availability of accommodation to the comparator group.

26To succeed in creating a viable claim, the appellants would have to plead that the claimed and defined benefit is an appropriate accommodation and that it could be delivered in the public school system. It would be necessary to demonstrate that children with autism do not receive appropriate accommodation for their education and that the claimed benefit is an appropriate accommodation for school-age children with autism. See Wynberg, paras. 122-137. In addition, the appellants must prove that the comparator group does receive appropriate accommodation that is available to all members of the group. It may be that the appellants can plead, for example, that all persons in the comparator group have a process available to determine their accommodation, while the appellants do not have such a process available because the respondents have effectively denied them the benefit they are seeking. (Sagharian at paragraphs 25 and 26).

13In the present Transitional Application, it would not be appropriate for me to dismiss the Application with leave to the applicant to seek to amend his complaint to reframe the Application with more precision. As part of the transition process, an applicant may abandon a complaint filed at the Commission prior to June 30, 2008 and file a transitional Application. However, that transitional Application is circumscribed by the provisions of section 53(3) which provide:

(3) Subject to subsection (4), at any time during the six-month period referred to in subsection (2), the person who made a complaint that is continued under that subsection may, in accordance with the Tribunal rules, elect to abandon the complaint and make an application to the Tribunal with respect to the subject-matter of the complaint. (emphasis added).

14The Transitional Application before me relates to the subject-matter of the complaint filed with the Commission, which for all intents and purposes is indistinguishable from Wynberg. There is no mention in the original complaint of deaf or deaf/blind students as a comparator group or of a defined method of intervention that could be delivered in the public school system.

15In my view, the Court of Appeal decisions in Wynberg and Sagharian effectively held that the Ministry of Education did not discriminate against children with autism by failing to ensure the delivery of IBI consistent with IEIP guidelines in the school boards and that a party cannot avoid the effect of Wynberg by claiming that a non-specific form of intervention could be delivered through the school boards.

16The applicant has not pleaded any facts that would distinguish his claim from the claims which have been dismissed by the Court of Appeal Wynberg or Sagharian.

Meaning of Discrimination under the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) and the Code

17The applicant submitted that the Court’s conclusions with respect to discrimination in Wynberg and Sagharian are not binding on this Tribunal because the analysis of discrimination under the Charter and the Code are different.

18The respondent submitted that the courts have consistently held that discrimination claims against government in the context of the Code are analyzed following the same framework established under s. 15 of the Charter: Ontario (Attorney General) v. Ontario (Human Rights Commission), 2007 CanLII 56481 (ON SCDC), [2007] O.J. NO. 4978 (Div. Ct) at para 47; Ontario Secondary School Teachers Federation v. Upper Canada District School Board, 2005 CanLII 34365 (ON SCDC), [2005] O.J. no. 4057 (Div. Ct) at paras. 20-29).

19In Ontario Disability Support Program v. Tranchemontagne, 2009 CanLii 13295 (“Tranchemontagne, 2009”), the Divisional Court further clarified the approach to discrimination under the Code in light of Charter jurisprudence.

20While Tranchemontagne, 2009 provides judicial support for distinguishing the applicability of legal tests developed under the Charter to the Code context, in the particular case before me, that case does not assist the applicant.

21The traditional test applied under the Charter was set out in Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497 (“Law”). Iacobucci J. said that a court that is called upon to determine a discrimination claim under s. 15(1) should make the following three broad inquiries (at para 39)

First, does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant’s already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? If so, there is differential treatment for the purpose of s. 15(1). Second, was the claimant subject to differential treatment on the basis of one or more of the enumerated and analogous grounds? And third, does the differential treatment discriminate in a substantive sense, bringing into play the purpose of s. 15(1) of the Charter in remedying such ills as prejudice, stereotyping, and historical disadvantage? The second and third inquiries are concerned with whether the differential treatment constitutes discrimination in the substantive sense intended by s. 15(1). (Emphasis in original).

22In Tranchemontagne, 2009 the Divisional Court clarified that in the context of the provision of services pursuant to a government benefit program, the analysis of discrimination under the Code is not necessarily identical to that under the Charter. The test under the Code is:

1. Has the complainant established a prima facie case, demonstrating that the service creates a distinction based on a prohibited ground under the Code?

2. Has the respondent established, on a balance of probabilities, that the distinction does not create a disadvantage by perpetuating prejudice or stereotyping? Alternatively, has the respondent established a statutory defence under the Code?

23More specifically, the Divisional Court held it is not necessary for a person to demonstrate the impact upon their human dignity in order to establish prima facie discrimination under the Code because the Code’s preamble recognizes and assumes that impact on human dignity: Tranchemontagne, 2009 at para 104.

24However, this distinction between the legal tests in establishing prima facie discrimination under the Code and the Charter does not assist the applicant in this case, because the Court’s finding in Wynberg that there was no prima facie discrimination by the Ministry of Education did not rest on the conclusion that the plaintiffs had not established the necessary impact on their dignity interest.

25In Wynberg, the Court of Appeal held that the plaintiffs had not established a prima facie case of discrimination because they had not established any differential treatment or differential impact as a result of the actions of the Ministry of Education. Those remain necessary elements to establish a prima facie breach of the Code and the Court’s findings on those matters are not distinguishable in any material way from the issues in dispute in the Application before me.

The Code and the Duty to Accommodate

26The applicant also attempted to distinguish the Charter and the Code by reference to the statutory obligation on the respondent to take steps to accommodate the Code-related needs of the applicant unless the required accommodation causes undue hardship. This argument misconstrues the accommodation obligations under the Code. There is no freestanding right under the Code to have one’s disability accommodated short of undue hardship. It is only after the applicant has established a prima facie case of discrimination in the provision of a service on the basis of disability, that the onus shifts to the respondent to establish a defence. One of the defences that may be relied upon by a respondent is that accommodation is not possible or that the provision of the accommodation needed by the applicant cannot be provided without causing undue hardship to the respondent (s. 11 and s. 17 of the Code).

27However, the issue of whether accommodation is possible, or whether the provision of the accommodation would cause the respondent undue hardship, only arises once the applicant has demonstrated a prima facie case of discrimination in the provision of a service.

28As stated above, the Court of Appeal has held that the Minister of Education’s failure to mandate either IBI consistent with the IEIP Guidelines or to mandate a non-specific form of intervention does not amount to prima facie discrimination on the basis of disability. That is precisely the issue raised by the applicant in this Application and I am not persuaded that the applicant has raised any convincing reasons why the outcome in this Application would not be the same as in Wynberg.

Failure to provide pre-school preparation

29The applicant also alleges that the Minister failed to provide adequate pre-school preparation through programs such as the Ottawa Children’s Treatment Center (OCTC), IEIP or First Words. The OCTC is one of six school authorities established under s. 68 of the Education Act to permit children, whose primary need is for medial care and treatment, to also receive education services while they are receiving necessary medical services. The IEIP is run by the Minister of Community and Social Services and was aimed at children aged two and five. The applicant did not provide any details about First Words but the respondent denied that it is responsible for this program and this assertion was not disputed by the applicant. Whether or not the applicant was denied admission to the OCTC or IEIP or First Words prior to age six and whether such denial amounts to a breach of the Code by them is not an issue before me, as the OCTC, the Minster of Community and Social Services or First Words are not respondents in this proceeding.

30The applicant relies on the lack of pre-school preparation as a basis to found liability against the Minister in two ways. First, the applicant attempts to distinguish the application of the Wynberg case to his circumstances on the basis that the plaintiffs in the Wynberg case had received a considerable amount of Intensive Early Intervention Programming prior to being cut off, whereas the applicant had received no adequate pre-school preparation prior to age six. It is important to clarify that there were actually 35 children with autism participating in the Wynberg case. The year of birth of the various minor plaintiffs ranged from 1993 to 2000. The plaintiffs’ experiences in terms of whether, and to what extent, they had received services from the then IEIP program varied widely. That is why Wynberg was considered the test case on those issues.

31I accept the respondent’s argument that the fact that applicant may not have received services from the IEIP (now the Autism Intervention Program) until his senior kindergarten year does not sufficiently distinguish this applicant from the plaintiffs in Wynberg.

32Second, the applicant argued that the Minister’s responsibility to provide special educational services requires them to provide adequate pre-school preparation for students with autism, such as they do for deaf children. The applicant asserted that deaf pupils are permitted to start school before the age of four and that they may attend junior and senior kindergarten on a full-time basis but that similar options are not available to students with autism.

33Ontario currently operates four Schools for the Deaf. Deaf students attending these schools for junior or senior kindergarten may attend on a full-time basis. Students are generally admitted to the junior kindergarten program in Ontario Schools for the Deaf in the year in which they turn four years of age, although the school board may decide to accept a student as young as two (Section 30 of R.R.O. 1990, Reg. 298 Operation of Schools – General).

34As stated above, the applicant did not allege in his original complaint that he was discriminated against compared to deaf children and therefore whether the applicant could marshal the evidence lacking in the Wynberg case to establish discriminatory treatment compared to this comparator group is irrelevant. That aspect of the complaint, raised for the first time in April 2009, is not before me.

Conclusion

35For all intents and purposes the issues raised in the present Application are indistinguishable from the issues raised in Wynberg. The Court of Appeal found that the Ministry’s failure to fund and ensure that school boards provide IBI does not amount to prima facie discrimination on the basis of disability. Accordingly, this Application is dismissed.