C.M. v. York Region District School Board, 2010 HRTO 1494

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

C.M. by her Next Friend P.M.

Applicant

-and-

York Region District School Board, Greg Farrell and Sharon List

Respondents

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of the Attorney General and Ontario Human Rights Commission

Intervenors

DECISION

Adjudicator: David A. Wright

Date: July 8, 2010

Citation: 2010 HRTO 1494

Indexed as: C.M. v. York Region District School Board

APPEARANCES

C.M. by her next friend P.M., Applicant ) P.M.

York Region District School Board , ) Brenda Bowlby, Greg Farrell and Sharon List, Respondents ) Counsel and Mark ) Laya, Student-at-Law

1This Application relates to the respondent York Region District School Board’s (the “Board’s”) policies and practices regarding pediculosis (head lice). The Board’s elementary school students may be checked by volunteers or nurses for the presence of head lice or nits (eggs of the head lice). If a student (elementary or secondary) has been identified as having head lice or nits, the policy provides that the student will generally be removed from the classroom and, if possible, sent home. The student is not allowed to return to school without a note from a parent or guardian stating that all nits and lice have been removed from the student’s head. The applicant, through her father acting as next friend, alleges that these policies discriminate contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) on the basis of age and perceived disability. She also suggests that excluding students from school on the basis of the presence of nits is not scientifically justified.

2The Application raises a number of legal issues, including the constitutionality of the exclusion of those under 18 from the definition of “age” in the Code: see the Tribunal’s Interim Decision, 2009 HRTO 735. The parties agreed to deal first with whether the Application alleges differential treatment on the basis of age. The issues were subsequently broadened in an Interim Decision to include the issue of whether there is differential treatment based on disability (see 2009 HRTO 1678), and broadened in argument to include whether there is substantive discrimination. The intervenors did not participate in this portion of the hearing.

3Fundamental to deciding the issues in this Application is a purposive interpretation of the rights protected in the Code. The Code does not aim to eliminate all differences in treatment, but rather discrimination, in the form of disadvantage, prejudice and stereotyping, on the grounds set out in the Code: see generally Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143 at p. 174; R. v. Kapp, 2008 SCC 41; Ontario Disability Support Program v. Tranchemontagne (2009), 2009 CanLII 18295 (ON SCDC), 95 O.R. (3d) 327. The meaning of the grounds must be interpreted in light of these purposes: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City), 2000 SCC 27; B. v. Ontario (Human Rights Commission), 2002 SCC 66.

4The role of the Tribunal in a case like this is not to determine whether the Board’s approach to pediculosis is a good one or sound educational policy. That is the responsibility of the Board. The Tribunal’s job is to determine whether the issues engage the purposes of the Code and amount to substantive discrimination on the basis of a Code ground.

5Applying a purposive analysis, I find that head lice or nits are not a disability or perceived disability within the meaning of the Code and that conducting lice checks in primary schools but not in secondary schools does not constitute substantive discrimination on the basis of age.

FACTUAL BACKGROUND

6The applicant is 11 years old and in elementary school. During a head check conducted by a nurse hired by the school council, nits were discovered in her hair. The school called the applicant’s mother and advised her of this and asked that a parent pick her up. The applicant’s father attended at school and picked her up, and she returned to school the next day after her parents removed more nits. There is some dispute over whether the principal permitted the applicant to return to class, which I need not resolve in view of the conclusions I have reached.

7The following basic facts about pediculosis were undisputed:

• Lice are small insects that may be present in various parts of the body

• Head lice can spread through close contact and through sharing of clothes and other personal articles

• Head lice are generally considered a nuisance rather than a health problem

• Head lice live and breed on hair and feed by biting the scalp

• Head lice may cause a tickling feeling, itching, irritability and sores on the head caused by scratching

• They are relatively easily treated with over the counter products and can be removed by hand

• Pediculosis is common in the Board’s elementary schools and rare in secondary schools. This is because, among other things, elementary school students often play closely and share clothes, and this makes head lice more likely to spread. Occasionally secondary students are found to have head lice.

8The essential elements of the Board’s policy and practice regarding head checks for pediculosis are as follows:

• Checks of students’ heads may be conducted by staff, nurses or volunteers. There is no uniform practice across the Board’s schools and not all schools conduct head checks.

• The Board’s policy provides that in elementary schools principals should “[c]onsider implementing a ‘community volunteer’ program” for head checks and that secondary school principals should “[a]ssume and expect that secondary school students accept responsibility for their own personal management”.

• Head checks are not conducted in secondary schools.

• Where there is a cost for head checks this cost is generally paid for by the school council. This is what occurred in the applicant’s school.

9The Board’s policy provides as follows, with regard to elementary school students found to have pediculosis:

5. When a student is suspected/identified as having pediculosis:

a) attempt to contact a parent/guardian and request that the student be treated as soon as possible. If feasible, the parent/guardian should pick up the child and commence treatment. If this is not feasible, then the child should be removed from the classroom. Sensitivity to the feelings of the child should be given highest priority.

b) send home with the student the notice “A Message to Families about the Presence of Head Lice” (Appendix F) and the pamphlet “The Facts of Lice” (Appendix C). (Appendix H) “A Message to Families About Pediculosis (Head Lice)” should be sent home with the other students in the class;

c) readmit the student to class when they receive a signed statement from the parent/guardian (Appendix G) certifying that treatment has been administered and that the student is free of pediculosis i.e. all nits (eggs) have been removed from the hair;

d) check the student’s head, or assign a designate to this role, to ensure all nits (eggs) have been removed from the hair before readmission to class.

6. Excuse student from school for treatment purposes under Section 20 (2) (b) of the Education Act.

7. Where a parent/guardian has not taken effective treatment steps to remove the pediculosis:

a) refer the parent/guardian to the Public Health Nurses at Health Connection and may inform the Superintendent of Education;

b) excuse the student from attendance at school under Section 20 (2) (b) of the Education Act, and if the parent/guardian refuses, then the principal may, under Section 22(l) of the Act, suspend the student for conduct injurious to physical and mental well-being of others in the school. Only in unusual circumstances such as persistent refusal on the part of the parent/guardian should such exclusion be considered. Every effort should be made to reduce any possible absence from school due to the incidence of pediculosis. An alternate approach may be to remove the student from the classroom to a suitable area where the pupil can continue to work on assignments until s/he is free of pediculosis. (emphasis in original)

10The policy provides as follows with regard to secondary school students found with pediculosis:

3. When a student is suspected of having pediculosis:

a) remove the student from classes until the end of the day and send him/her home with a copy of “The Facts of Lice” (Appendix C), outlining the treatment or, if a parent/guardian is at home, attempt to send the student home at once with this pamphlet;

b) readmit the student to class upon receipt of a signed statement from the parent/guardian (Appendix G) certifying that treatment has been administered and that the student is free of pediculosis i.e. all nits (eggs) have been removed from the hair;

c) check the student’s head, or assign a designate to this role, to ensure all nits (eggs) have been removed from the hair before readmission to class.

4. When a parent/guardian has not taken effective steps to remove the pediculosis:

a) refer the parent/guardian to the Public Health Nurses at Health Connection and may inform the Superintendent of Education;

b) excuse the student from attendance at school under Section 20 (2) (b) of the Education Act, and if the parent/guardian refuses, then the principal may, under Section 22(l) of the Act, suspend the student for conduct injurious to the physical and mental well-being of others in the school. Only in unusual circumstances such as persistent refusal on the part of the parent/guardian should such exclusion be considered. Every effort should be made to reduce any possible absence from school due to the incidence of pediculosis. An alternate approach may be to remove the student from the classroom to a suitable area where the pupil can continue to work on assignments until s/he is free of pediculosis. (emphasis in original)

LEGAL ANALYSIS

Disability

11The first issue is whether pediculosis or nits is a disability or perceived disability within the meaning of the Code. The relevant provisions of the Code read as follows:

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

2. (1) “disability” means,

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,

(b) a condition of mental impairment or a developmental disability,

(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,

(d) a mental disorder, or

(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997;

(3) The right to equal treatment without discrimination because of disability includes the right to equal treatment without discrimination because a person has or has had a disability or is believed to have or to have had a disability

12The applicant’s next friend argues that lice or nits are treated as a medical issue by the Board and in our society more generally. He also argues that the manner in which the Board treats lice or nits in its practices and policies makes it a disability or perceived disability, through the exclusion of students with lice or nits from school until they are treated. He argues that this shows a considerable stigma as a result of nits and lice in the hair. The applicant cites a decision of the Workplace Safety and Insurance Appeals Tribunal, Decision No. 2253/07, 2007 ONWSIAT 2621, in which contracting head lice by an educational assistant in a school board was found to be a workplace accident with the meaning of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A, as amended.

13The Supreme Court of Canada has set out a framework for analyzing whether a medical condition or ailment is considered a disability within the meaning of human rights legislation; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), 2000 SCC 27. A decision-maker must consider not only an individual’s biomedical condition, but also the circumstances in which a distinction is made (para. 80).

14The Court has made it clear that that everyday illnesses or normal ailments are not generally disabilities under human rights legislation stating at para. 82:

These guidelines are not without limits. Although I believe that health may constitute a “handicap” and thus be a prohibited ground of discrimination under s. 10 of the Charter, the same cannot be said of personal characteristics or “normal” ailments. There is not normally a negative bias against these kinds of characteristics or ailments, and they will generally not constitute a “handicap” for the purposes of s. 10. As the emphasis is on obstacles to full participation in society rather than on the condition or state of the individual, ailments (a cold, for example) or personal characteristics (such as eye colour) will necessarily be excluded from the scope of “handicap”, although they may be discriminatory for other reasons.

The Tribunal has applied this test under the Code: see Anderson v. Envirotech Office Systems, 2009 HRTO 1199 and Moulton v. Leisureworld Caregiving Centre, 2009 HRTO 1575.

15I find that in the circumstances of this case, lice or nits, like colds, are a normal ailment that does not fall within the ground of disability protected by the Code. Lice or nits occur very often among Ontario children and last a short time. They are easily treated and removed and do not cause significant obstacles to participation in society. Like individuals with cold symptoms, to avoid the risk of spreading to others, individuals with lice may be required not to participate in school or work until the symptoms are treated or have resolved, but that does not mean that the ailment leads to stigma or bias in the sense of Code-protected disabilities that are barriers to full participation in society.

16I do not agree with the applicant that what he characterizes as the Board’s overreaction can make lice into a disability within the meaning of the Code. The exclusion of young students with lice or nits for a brief period until they are removed, whether scientifically justified or not, is not the type of treatment that the Supreme Court is referring to when it talks about “negative bias” against people with physical disabilities. Lice or nits are common, short term and easily treated. The applicant’s disagreement with the Board’s response to head lice and nits does not make the condition a disability that falls within the purposes of the Code to prevent stereotyping and prejudice based on personal characteristics. Moreover, the treatment of lice under particular circumstances under the Workplace Safety and Insurance Act does not make it a disability under the Code, unless the applicant in this case had claimed benefits for it under that legislation, which is not the case.

17Accordingly, I find that the Application does not raise the ground of disability within the meaning of the Code.

AGE

18In s. 10 of the Code, “age” is defined to mean “an age that is 18 years or more”. In Arzem v. R. (Ontario), 2006 HRTO 17, the Tribunal held that for the purposes of those proceedings, the definition of age violated the Canadian Charter of Rights and Freedoms and was of no force or effect. That decision is not binding in this Application and is not a general declaration of unconstitutionality (see Arzem at para. 172). The parties agreed, however, to address the issue of prima facie discrimination on the basis of age assuming the definition is of no force or effect before addressing the constitutionality of the definition of “age” in the Code.

19The applicant argues that there is discrimination on the basis of age on various grounds. First, she says that children over the age of 18 give consent if their heads are examined for lice while the parents of children under the age of 18 do not provide such specific consent. Second, she says, general lice checks are done in many primary schools and rarely in secondary schools and this constitutes age discrimination. Third, she suggests that there are not mandatory checks for staff in the schools, who are older than the students.

20There is no question that in many circumstances, age is a necessary and legitimate ground for distinctions among children. Children at different ages are at different developmental stages, and require different degrees of care and supervision. Human rights law recognizes that children are entitled to special care and protection, and this often requires treating them differently in sensitivity to their age and development: Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817. It is evident that it is necessary and respectful of human rights principles to treat children differently on the basis of age in many ways, from placing them in different grade levels in school to age requirements for engaging in various activities such as staying home alone or driving. Assuming that the limitation on the definition of age in s. 10 were to be struck from the Code, there must still be a purposive, contextual interpretation of discrimination under that ground that takes into account the nature of human development during childhood. It would not be required, in my view, for respondents justify on a balance of probabilities every difference in treatment of children of different ages.

21In this case, I find that there is not prima facie discrimination on the basis of age. Head checks for lice in elementary schools respond to the greater prevalence of lice in elementary school children and the fact that developmentally, they are less attentive to what might be in their hair than secondary school students or adult staff. Therefore, the differential treatment of elementary school students does not create disadvantage by perpetuating stereotyping and prejudice and therefore does not amount to discrimination.

22With regard to the applicant’s argument that a child over 18 is consenting to a head check while the parent of a child under 18 is not, for the same reasons, I find that any difference with regard to the Board’s approach to consent does not relate to stereotyping and prejudice. Those who are caring for an elementary school-aged child will necessarily engage in physical interactions that would require consent from an adult; this is inherent in caring for and supervising children. In view of the developmental level of children under 18, it is not prima facie discrimination each time parents do not give specific consent to an interaction with school officials that would require consent from an adult.

23The applicant has cited a variety of statutes and decisions on the issue of consent. The issue before the Tribunal is not whether parental consent is required, but rather whether a failure to obtain consent amounts to age discrimination. In my view, these decisions and statutes are not relevant to the issue of whether there is substantive discrimination on the basis of age.

24Assuming that the ground of age applies in these circumstances, I find that there is no substantive discrimination against the applicant on the basis of age in this case.

ORDER

25The Application is dismissed.