Wattie v. Toronto District School Board, 2010 HRTO 1729

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kerr Wattie

Applicant

-and-

Toronto District School Board

Respondent

INTERIM DECISION

Adjudicator: Mark Hart

Date: August 20, 2010

Citation: 2010 HRTO 1729

Indexed as: Wattie v. Toronto District School Board

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O 1990, c. H.19 as amended (the “Code”), dated May 8, 2009. The underlying amended complaint was filed with the Ontario Human Rights Commission (the “Commission”) on July 11, 2007.

2The purpose of this Interim Decision is to address the applicant’s Request for production.

3The Application relates to the applicant’s attendance at Sir William Osler High School (“Osler”). The applicant is a person with multiple disabilities, including cerebral palsy, cortical visual impairment and a seizure disorder. It is alleged that the needs relating to the applicant’s disabilities were not appropriately accommodated during the period that he attended Osler.

4The applicant has not been in attendance at Osler since June 2005, when he was withdrawn from the school due to the alleged lack of accommodation. The applicant is now 26 years old, and the respondent states that the applicant’s entitlement as a resident pupil of the respondent Board to access educational services ceased at the end of June 2006.

5The applicant first requests production of any policies of the respondent Board or the Ministry of Education which the Board relies upon or implements in relation to the applicant’s claim that the Board discriminatorily disallowed a science credit. Notwithstanding its position that it is not obliged to produce Ministry documents, these documents were produced by the respondent Board with its Response to Request for Order. As a result, no order is required.

6The applicant next seeks documentation on the availability of American Sign Language (“ASL”) interpreters within the respondent Board in specialized classes for the Deaf or in integrated classes. The respondent takes the position that such documents are not arguably relevant to the matters at issue in this proceeding. The applicant submits that the Application alleges that the Board discriminated against him by failing to provide a trained one-on-one communications assistant, which is stated to be akin to an interpreter, and that without such an assistant he was denied the ability to communicate and therefore benefit from an education. The applicant seeks documentation on the availability of ASL interpreters within the Board in order to use this information in support of a comparative analysis to demonstrate how Deaf students and students such as the applicant with complex communication needs are treated differently and have different access to communication assistance. The respondent disputes that an ASL interpreter is analogous to a trained communication intervenor.

7The respondent notes that it has never refused to produce this documentation to the applicant, and correspondence between the parties confirms that the respondent would be requesting any existing documents at the Board that were responsive to the applicant’s request.

8In the absence of further evidence regarding the appropriateness of a comparison between ASL interpreters and the kind of trained communication assistance that the applicant requires, it is not at all clear to me that the documentation sought is arguably relevant to the matters at issue in this proceeding. While I am not prepared at this stage to require production of this documentation, I do encourage the respondent to provide the requested documentation in accordance with the deadline for production otherwise established in this Decision and I leave it open to the applicant to renew his request and the issue of the relevance of the comparison with ASL interpreters before the adjudicator at the hearing in this matter, so that a determination can be made on the basis of a more complete evidentiary record.

9The applicant next requests any Special Incidence Portion (“SIP”) applications submitted on his behalf or in his name and any other documentation in relation to such applications. The respondent does not dispute the arguable relevance of such documentation, but states that it is not in a position to produce this documentation at this time as the Special Education Coordinator who has the SIP portfolio is currently on vacation and will not return until September 2010. While the hearing in this matter is scheduled to commence on October 6, 2010, in light of the relatively discrete nature of this documentation, I do not believe that it would prejudice the applicant if it were produced following the Special Education Coordinator’s return from vacation. Accordingly, this documentation is required to be produced by the respondent by no later than September 10, 2010.

10The applicant next requests documentation on any Intensive Support Amount claims made on behalf of or for the applicant or in his name and any other documentation in relation to such applications. The respondent has advised that no such documentation exists. Accordingly, no order for production is warranted.

11The applicant next requests any policies or other documentation on how to determine a student’s accommodation needs and educational placement, including any requirement for parental involvement. The respondent states that it already has produced the Board’s Special Education Plan for the years 2001, 2003 and 2005 and also relies upon Regulation 181/98 under the Education Act, R.S.O. 1990, c. E.2. If the respondent Board has any other policies relating to the determination of a student’s accommodation needs or any policies or documents relating to parental involvement, then such policies or documents would be arguably relevant to the matters at issue in this proceeding, and are to be produced by September 10, 2010.

12The applicant requests policies or other documentation describing the process to be followed by the Board’s human rights office when approached by a parent or student. In response, the respondent has produced its Human Rights Policy, which appears to be responsive to the applicant’s request. No further order is warranted.

13Finally, the applicant requests documentation on the classroom placement and assignment of Sam Reid, including information on when she was in the same classroom as the applicant, what her duties were, and what periods she was assigned individually to the applicant. In response, the respondent has produced documentation that appears to be from Ms. Reid’s human resources file regarding her position and placement. While this documentation does provide some basic information, it is not fully responsive to the applicant’s request.

14While the respondent may have produced all documents in its possession that are responsive to the applicant’s request, the Tribunal also has the power to order a party to produce “information” pursuant to Rule 1.7(p) of its Rules (which is incorporated into its Rule for Transitional Applications pursuant to Rule 11.1). In this proceeding, there is an issue between the parties as to whether the duty to accommodate under the Code required the assignment of a specific Special Education Assistant, Ms. Reid, to the applicant’s classroom and/or to the applicant individually. In my view, and without making any determination as to whether the duty to accommodate in fact required such an assignment, the information sought by the applicant is relevant to the determination of this issue. Accordingly, the respondent is ordered to provide the information sought by the applicant to the best of its ability by no later than September 10, 2010.