Human Rights Tribunal of Ontario
B E T W E E N:
Annika Merner by her Next Friend Chantal Merner Applicant
-and-
Greater Essex County District School Board Respondent
Interim Decision
Adjudicator: Jay Sengupta Date: January 27, 2010 Citation: 2010 HRTO 194 Indexed as: Merner v. Greater Essex County District School Board
1This is an Application filed on March 3, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination in receipt of goods, services and facilities on the basis of disability.
2The purpose of this Interim Decision is to deal with three Requests for Order filed by the applicant on December 21, 2009. On that date, the applicant filed a Request to Expedite, a Request to Amend her Application, and a Request for an Interim Remedy. The Tribunal received responses to these Requests from the respondent on January 22, 2010.
Request to Expedite
3Both parties argue in support of this matter being dealt with in an expeditious manner and, in any event, in advance of the commencement of the 2010-2011 school year.
4The parties have agreed to mediation. Although a date has been set for mediation, the Tribunal will contact the parties with a view to scheduling an earlier mediation date. The Tribunal will defer making a decision on the Request to Expedite pending the outcome of mediation.
Request to Amend Application
5The original Application alleges discrimination on the basis of disability in the provision of goods, services and facilities by the respondent and an alleged failure to accommodate the applicant’s disability in the school setting. The applicant now seeks to add reprisal and to amend her remedial request to include an award for monetary compensation in the amount of $10,000.00 and a request for additional classroom supports. She points out that she is not adding any new allegations or adding to the factual basis of the original Application.
6The respondent does not object to the applicant’s request to amend her Application, but requests particulars and the opportunity to file an amended Response if needed.
7The Tribunal has permitted amendments to applications made under section 34, taking into account the stage at which the request is made, the nature of the amendment and the absence of any prejudice (see Dube v. Canadian Career College, 2008 HRTO 336). I see no reason why the applicant cannot amend her pleadings, as described in her Request for Order during Proceedings.
8The applicant is directed to submit particulars in support of her Request to amend, in particular with respect to the remedial request for additional classroom supports within two weeks of this Interim Decision. The respondent shall have a further two weeks to file any amendments to its Response.
Request for an Interim Remedy
9The applicant filed this Request seeking an order from the Tribunal directing that the applicant’s service animal, Cargo, be permitted to travel to and from and attend school with her pending a final resolution of this Application.
10The applicant has provided some documents in support of her request, including a declaration from the applicant’s mother and Next Friend and two documents from the applicant’s psychologist that are not in the form of declarations.
11The applicant’s mother and Next Friend, in her declaration, alleges that the applicant is suffering emotional and educational harm without the service animal’s attendance to and from and at school. She expresses concern for the applicant’s well-being as a result of her deteriorating grades and her observations regarding the applicant’s behaviour at home. She attributes the difficulties described to the applicant’s inability to be accompanied by her service animal while travelling to and from and at school.
12The neuropsychological report is dated May 5, 2007 and speaks to the applicant’s medical conditions, makes recommendations for continuing therapeutic care and provides opinions regarding appropriate accommodations for the applicant within the school setting. This report was clearly not prepared for the purpose of providing evidence on the Request. The letter, dated September 10, 2009, from the same psychologist, speaks to the positive effect the service animal has on the applicant and offers her opinion as to the value and necessity of the animal being present in the school setting.
13The respondent school board has provided a declaration from the principal of the school the applicant attends, in which he states that while he cannot speak to the applicant’s condition and behaviour while she is at home, her performance at school is comparable to, if not better, than in the previous year. He points out that her report cards show no marked decline in her grades, which, with the exception of one subject, are all in the high range as they have been in the previous school years.
14He states that the applicant has never had a service animal in school previously and that her academic and social progress in school has been strong. In addition, he alleges that the school is addressing the applicant’s need for accommodation using a variety of techniques that he describes in some detail.
15The respondent argues that the introduction of the service animal in a bus and classroom with young children has to be undertaken within the school’s statutory obligation with respect to the safety and comfort of all students in its care.
16The respondent has also pointed out that a number of third parties who have not received notice of the Request for Interim Remedy or had the opportunity to comment would be affected by an order granting the interim relief sought. In particular, it points to the private company contracted to provide transportation to the students in whose bus the service animal would ride and the teachers and Educational Assistants and their unions, given that they would likely be expected to