Schafer v. Toronto District School Board, 2010 HRTO 403

Human Rights Tribunal of Ontario

B E T W E E N:

Eli Schafer by his litigation guardian, Reva Schafer Applicant

-and-

Toronto District School Board Respondent

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: Kaye Joachim Date: February 23, 2010 Citation: 2010 HRTO 403 Indexed as: Schafer v. Toronto District School Board

APPEARANCES BY

Eli Schafer by his litigation guardian, Reva Schafer, Applicant Reva Schafer, Representative

Toronto District School Board, Respondent Eric Roher, Counsel

1This is an Application filed November 6, 2008 under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”).

2The applicant is represented by his mother and litigation guardian, Reva Schafer. The applicant is a minor with various special learning needs which will be discussed below. In 2005, he enrolled in grade nine at Central Technical High School (“Central Tech”). The respondent is the Toronto District School Board (the “TDSB”, the “Board” or the “respondent School Board”).

3The applicant alleges that from September 2005 to April 2006, the TDSB did not provide him with appropriate special education services in accordance with his disability-related needs.

4The TDSB alleges that they did provide services and therefore did not breach the applicant’s right to equal treatment under Section 1 of the Code.

5The second aspect of the complaint relates to two suspensions issued by Central Tech, one in November 2005 for five days and one in March 2006 for 20 days. The applicant alleges that the imposition of these suspensions was discriminatory because the TDSB did not take adequate account of the impact of applicant’s disabilities in determining his culpability or in determining an appropriate penalty. The applicant also alleges that the failure to implement accommodations contributed to the applicant’s actions on November 10, 2005 and the TDSB’s failure to take that into account was a form of discrimination. The applicant alleges that the continuing effects of the discriminatory suspension, including the failure to implement an appropriate re-entry plan contributed to the applicant’s behaviour on February 28, 2006.

6Another aspect of the complaint relates to the adequacy of the homework provided during the suspension and the re-entry plan following the suspension.

7The Case Resolution Conference in this Application took place over several days between May 2009 and October 2009. The parties submitted extensive documentation and detailed statements of facts and will say statements. The following witnesses testified orally: Reva Schafer, Paula Aquilla, occupational therapist, Rick Tarasuk, former principal of Central Tech, Georgina Balascas, former Superintendent of Education, Dan Shafransky, former Vice-principal of Central Tech, Julie Beattie, assistant curriculum leader, special education, Sandra Hill, curriculum leader, special education, Stephanie Williams, Supervising Principal, special education, southwest quadrant, and first term teachers, Doug Richard, Geoffrey Watson, Lynda Filip and Sara Franklin.

Statutory Scheme for Special Education

8The statutory scheme for special education begins with the definition of “exceptional pupil” in the Education Act, R.S.O. 1990, c.E.2, as amended, as one whose

“behavioural, communicational, intellectual, physical or multiple exceptionalities are such that he or she is considered to need placement in a special education program by a committee…of the board…” [sec.1(1)].

9The Education Act establishes an obligation on the Minister to ensure that all exceptional children in Ontario have available to them, “appropriate special education programs and special education services”. [s.8(3)]. The Minister’s responsibility is to provide the regulatory framework within which school boards provide those programs and services.

10Regulations under the Education Act flesh out the obligations of school boards in the provision of special education programs and services and establish the process for the identification and placement of exceptional students, including the process by which parents may appeal a decision of an Identification Placement and Review Committee [O.Reg. 181/98 (Identification and Placement of Exceptional Pupils); Reg.306 (Special Education Programs and Services)]. The appeal process culminates in an appeal to the SET, a specialized tribunal established under the Education Act.

11Thus, the Education Act recognizes that students with disabilities and gifted students will not receive equal educational services without some modifications (accommodations) to their needs. The system for the identification and placement of students with disabilities and gifted children is the legislative choice for accommodating students with special needs in the school system:

I find that the statutory scheme for special education has as its central purpose the accommodation of children with special needs, including those with disabilities, so that they are able to receive the benefits of education available to others (see Eaton, para. 68). With respect to the provision of education services to children with disabilities, therefore, it has the same goal as the Code. In the words of the Board, “special education is all about finding the appropriate accommodation for students with disabilities.” Campbell v. Toronto District School Board 2008 HRTO 62

12In this context, where a student with special needs has been assessed and offered accommodations purportedly in accordance with the statutory scheme for special education, what is the role of the Tribunal?

13Ms. Schafer attempted throughout the hearing to point out that the TDSB did not comply with the Education Act or TDSB policy, that the procedures used by the TDSB were not fair, and that the school did not implement the accommodations listed in the IPRC or the latest Individual Education Plan (“IEP”). I advised the parties that those issues are not within my mandate. It is not the Tribunal’s role to ensure compliance with the Education Act. The only issue before me is whether the applicant experienced discrimination under the Code.

14In special education cases, it is self-evident that a child with special needs is unable to access the education system equally without accommodations. Generally the burden will rest with the respondent school board to establish the procedural and substantive steps they have taken to accommodate the child’s special needs. The statutory scheme sets out the procedural steps and the recommendations of the IPRC and/or found in the IEP will generally be the substantive accommodations offered.

15However, it is not the role of this Tribunal to oversee the implementation of the Education Act. Whether or not a school board strictly follows the procedures to arrange IPRCs or prepare IEPs is not for the Tribunal to determine. So long as there are steps taken to assess the child’s needs and prepare accommodations, then generally the procedural standard of the duty to accommodate will be met.

16Similarly, as long as the substantive accommodations as recommended in the IPRC and IEP are generally implemented, the substantive standard of the duty to accommodate will be met. The issue is not whether the accommodations implemented are what the student or parent wanted, whether they were the ideal accommodations, or whether other accommodations would have been equally appropriate. The simple question is this; did the school board implement accommodations (generally, but not necessarily as recommended by the IPRC or IEP) that met the child’s special needs?

17It appears to me that generally the best approach would be for the TDSB to present their evidence first and then turn to the child and parents to present their evidence why the accommodation was inadequate.

Chronology of Events

18In September 2005, Julie Beattie, the Assistant Curriculum Leader, special education at Central Tech reviewed the Ontario Student Records (“OSR”) of the special education students in her three classes, including the applicant.

19The applicant took four subjects in first term: geography, science, math and learning strategies with Ms. Beattie. The learning strategies course is taken primarily by students with special needs. The purpose of the course is to teach the students learning strategies, and assist them in keeping up with their other courses. Ms. Beattie worked with the applicant on his other coursework.

20On October 19, 2005, at the request of Ms. Schafer, a school team support meeting was held to finalize the applicant’s IEP. An IEP is a document that identifies the student’s areas of strength, areas of need and accommodations required. A draft IEP was presented at the meeting and Ms. Schafer made several handwritten comments and additions. Ms. Beattie subsequently incorporated virtually all of Ms. Schafer’s recommendations onto the IEP. Following the meeting, Ms. Beattie sent each of the applicant’s first term teachers a list of recommended accommodations suggested by Ms. Schafer.

21The applicant’s first term at Central Tech began well. He regularly attended classes and joined the football team. This positive start was confirmed in a letter from Ms. Schafer dated September 25, 2005.

22There were some setbacks early on as well. The applicant lost his agenda more than once and refused to use the replacements provided. He resisted taking computer training and using the computer which had been assigned to him as an accommodation.

First Suspension

23The events leading up to the first suspension began on Monday November 7, 2005. On that day, the applicant ran across the learning strategies classroom and popped his knee. Another special education student (“Student 2”) ran up to him and lightly kicked the applicant on the knee. Student 2 was reprimanded by Ms. Beattie and sent to the Vice-principal’s office and kept out of the rest of the class.

24The next day, the applicant began making statements about intending to “get” Student 2. Ms. Beattie explained that this was not an appropriate response and explained that consequences, such as a suspension, might result.

25On Thursday November 10, 2005, the applicant was overhead by a student teacher speaking to Student 2 in a threatening manner. During the lunch hour, the applicant stated to Student 2 something to the effect that he should give the applicant $25.00 to pay for the cost of a knee brace. Student 2 claimed that the applicant threatened to kill him if the money was not paid and also told him to watch out as his sister’s boyfriend would be waiting for him after school. Student 2 reported this to the Vice-principal, Dan Shafransky.

26Mr. Shafransky met with Ms. Beattie and the student teacher and learned of the earlier events from Monday, November 7, 2005. Mr. Shafranksy also met with the applicant in the presence of Ms. Beattie and the student teacher and obtained his version of events. Mr. Shafranksy was satisfied that the applicant admitted threatening Student 2 with violence if he did not pay money for the knee brace. The applicant was asked to write his version of events and simply wrote “Pay me 25 bucks and all is forgiven.”

27Mr. Shafransky decided to suspend the applicant for five days for the offence of “extortion.” The TDSB policy at that time called for a mandatory suspension of ten days and the calling of the police for extortion. However, considering the circumstances, including the absence of any similar incidents on the applicant’s OSR and the effect of a lengthy suspension on his schooling in light of his special needs, Mr. Shafranksy decided to impose a five day suspension. The suspension took place from Friday, November 11 to Thursday, November 17, 2005 inclusive.

28Ms. Schafer appealed the suspension and the Board of Trustees eventually decided that the issue was moot because the applicant had left the TDSB. The Trustees ordered that the suspensions be removed from the applicant’s OSR.

Homework during Suspension and Re-entry following Suspension

29At Ms. Schafer’s request, Mr. Shafransky arranged for the first term teachers to prepare homework for the applicant for Ms. Schafer to pick up on Monday, November 15, 2005.

30On November 17, 2005, Mr. Shafransky met with the applicant’s teachers to discuss his re-entry and made plans for how they would assist him to catch up on the homework. The teachers agreed to make themselves available at the lunch hour. On November 18, 2005, Mr. Shafranksy met with Ms. Schafer and the applicant and explained the arrangements made to catch up on the missed work. The applicant continued to express reluctance to use his computer and agenda. There was a discussion about putting the applicant in touch with a youth counsellor who worked with the school.

31Later that day, Mr. Shafransky met with the applicant, Student 2 and a youth worker to discuss how they would get along. The meeting ended with the boys shaking hands and agreeing that the incident was over.

32Unfortunately, the applicant continued to be upset over the suspension and missed several days of school due to hospital visits.

33During a meeting on November 28, 2005 with school staff about the suspension and accommodations, Ms. Schafer revealed that the applicant had been given a gang recruitment memo and asked what the school was going to do about it.

34As Ms. Schafer expressed concerns about the adequacy of the accommodation provided to the applicant, the school convened a second school support team meeting on December 1, 2005. Although Ms. Schafer was not invited, the school did arrange for the attendance of several persons specifically requested by Ms. Schafer. The following persons participated in the meeting: Mr. Shafranksy, Mr. Tarasuk, Anne Pollett and Leanne Foster, Low Incidence Consultants, Special Education, Elaine Choptiany, Occupational therapist, Sharon McWhirter, Coordinator, Speech Language Pathology Services, Sandra Hill, Special Education Advisor, Ms. Beattie and the applicant’s second term teachers.

35After a discussion of the applicant’s strengths and needs, the team decided to request updated speech-language, occupational therapy, and psychological assessments in order to further develop the applicant’s IEP. Ms. Schafer initially signed consent forms for the assessments but subsequently revoked her consent on December 14, 2005.

36In early January, 2006, Ms. Schafer asked the school to arrange an updated IPRC and the school began making arrangements.

37On January 20, 2009, the police from 14th Division contacted the school principal to advise they had received a tip about a possible robbery involving Central Tech students, including the applicant. Mr. Tarasuk sat in on the police interview. A search of the applicant revealed that he was carrying gloves, mask and bandana. The applicant denied knowledge of any proposed robbery. When Mr. Tarasuk called Ms. Schafer about the incident, she indicated that she was going to take the applicant out of Central Tech and that the school should refuse to permit him to return. Mr. Tarasuk indicated that they could not do that. During follow up conversations, Mr. Tarasuk urged Ms. Schafer to permit the applicant to finish his first term at Central Tech.

38The applicant did remain with the TDSB but wrote his first term examinations at St. Stephens House, a community organization. He passed all his first term courses.

39Ms. Schafer met with members of the TDSB to search for alternative schools for the applicant for the second term beginning in February 2006. These efforts were unsuccessful and, on February 2, 2006, Ms. Schafer indicated her intention that the applicant would return to Central Tech on Monday, February 6, 2006.

40The school prepared a second term schedule for the applicant immediately. At Ms. Schafer’s request, the applicant registered for the learning strategies course a second time. Mr. Tarasuk personally selected teachers for the applicant’s remaining courses based on their anticipated empathy and likely ability to work well with the applicant.

41Ms. Schafer asked the school to participate in a session with the applicant’s occupational therapist from whom she had commissioned a private assessment in January 2006. On February 9, 2009, the therapist, Paula Aquilla, met with the applicant’s teachers to explain the applicant’s central auditory processing difficulties. She suggested classroom strategies such as movement breaks, fidget toys, stretching and chair push-ups. The teachers’ evidence was that they found Ms. Aquilla’s information helpful, although they were already implementing some of these measures

Second Suspension

42On February 28, 2006, the applicant punched another student (“Student 3”) in the nose. When Student 3 reported to the Principal’s office, his nose was bleeding. The police, who were at the school on other matters, were called to take statements from Student 3 and a witness. The applicant was brought to the principal’s’ office at approximately 12:45 p.m. Ms. Schafer was contacted and she asked that her son not give a statement. By the time Ms. Schafer arrived at the school, at approximately 4:45 p.m., he had been arrested by the police for assault.

43Although Mr. Tarasuk initially intended to impose a limited expulsion, expelling the applicant from the school for the rest of the school year, after consulting with the Safe Schools Department and the Superintendent of Education, he imposed a 20 day suspension from March 1, 2006 to April 4, 2006. Mr. Tarasuk testified that the mitigating factors he considered included the applicant’s special needs and the impact of the suspension on his schooling. The factors favouring suspension included the impact on the victim and the safety of the school.

44The school made arrangements to send the applicant’s school work to him. As a result of a police restriction that the applicant not attend Central Tech, the TDSB was obliged to find another school for him to complete the second term following the suspension. On his return from suspension on April 6, 2006, the applicant was registered at West Toronto high school. There was another incident near that school and, on April 26, 2006, Ms. Schafer withdrew the applicant from the TDSB and enrolled him at a private school where he is currently completing credits for grade 12.

Decision and Analysis

The applicant’s submissions

45I have carefully considered the very detailed written submissions of the parties. I will not repeat all of them here. Briefly, the applicant submitted that the evidence demonstrated that the teachers, principal and vice-principal were not appropriately qualified and did not understand and appreciate fully the applicant’s special needs and the type of accommodations he needed; that the teachers did not provide the accommodations needed; that the principal and vice-principal did not accommodate the applicant during the investigation of the two suspension events; that the school viewed the applicant’s mother as unreasonably demanding; that the school did not listen to the applicant and thereby undermined his dignity; that the school failed to properly monitor whether appropriate accommodations were being implemented and fine tuned throughout the year; that the accommodations offered were not individually tailored to meet the applicant’s special needs, but rather were generally geared to meet the group needs of all the special education students; that school displayed a discriminatory attitude in describing the applicant as “unmotivated;” that the school did not properly follow TDSB procedures; that the suspension review process is fraught with delay and questionable communication practices; that the principal displayed an attitude of “zero tolerance” with respect to alleged safety concerns, but failed to take steps to ensure the applicant’s safety.

The Applicant’s Special Needs

46An IPRC conducted in June 2005 confirmed that the applicant’s exceptionalities are learning disability and language impairment. An addendum to the IPRC prepared by Ms. Schafer identified further areas of need: central auditory processing strategies, attention strategies, organization strategies, self management strategies, test-taking strategies. She identified him as having difficulties in oral language and verbal expression; understanding language across the curriculum, inferencing, predicting skills, effective problem-solving skills, self-advocacy skills and lack of self-esteem.

Accommodations in the First Term

47The applicant alleges that the TDSB failed to meet his special needs in the following ways:

• Computer was not set up so he could take notes and use dragon dictate;
• Software programs not reviewed to ensure they were suitable and up-to-date for high school;
• Computer was sent home twice when it was supposed to be used at school;
• Computer software programs were not installed for Science;
• Computer training was not delivered in a timely fashion;
• School failed to provide a digital recorder to tape lectures;
• Tests were not delivered in alternate format such as true false/multiple choice rather than essay or questions requiring memory retrieval;
• The teachers did not pre-teach the vocabulary for classes;
• IEP was not prepared in a timely way;
• First term teachers were not advised of the applicant’s needs until October 19;
• The applicant was moved from academic to applied math based on an assessment that was not offered in alternative format;
• GLE teacher refused to use feedback forms with other first term teachers;
• Teachers failed to write down assignments for the applicant or check that he had done his homework;
• Guidance teacher did not call regularly as requested;
• GLE teacher failed to do a reading/comprehension assessment;
• Teachers failed to reduce amount of reading;
• School policy permitted a maximum of 30 minutes extra on tests;
• Communication book not provided/used between GLE teacher and parent;
• Not paired with a peer from the start of the year;
• School did not provide a study carrel.

48As I stated earlier, a failure to accommodate within the meaning of the Code does not mean that the parent’s expectations are met.

49Contrary to Ms. Schafer’s assertions, the evidence established that the first term teachers were aware of the applicant’s special needs and had incorporated accommodations early in the school year. In particular, the teachers testified that they reformatted tests, provided additional time on tests, extended deadlines on assignments, provided preferential seating near front of class, refocused the applicant during class, encouraged movement breaks, provided material in smaller “chunks,” offered additional one-on-one instruction outside regular class hours, and provided constant encouragement and direction.

50In particular, the physics teacher consistently used verbal instructions and visual aids, and strongly encouraged the applicant to use his laptop computer and the science program, to no avail. The biology/chemistry teacher also arranged for a peer student, wrote down his homework in his planner, and gave him a review sheet before every test or assignment. They both designed special tests just for the applicant.

51The geography teacher for the most part did not find the need to offer individualized accommodations to the applicant as his usual teaching method incorporated “chunking” material, visual aids, movement breaks, and refocusing. Although he did not develop an individual test for the first test, he did for the final exam. He provided a special review sheet for the applicant and highlighted the important areas.

52In addition, the teachers, except the geography teacher, testified that they spoke frequently with Ms. Schafer with respect to the applicant’s progress. As the applicant was doing well, completing the class with a 74% average, the geography teacher did not feel the need for more contact with Ms. Schafer.

53Central Tech has a high percentage of special education students, approximately 25%. Accordingly, the teachers are attuned to the need to provide accommodations for many of their students and many of the accommodations required by the applicant were equally applicable to other students.

54I conclude that the TDSB fully accommodated the applicant’s special needs during the first term.

First Suspension

55Ms. Schafer submitted that the school’s failure to take appropriate action following the event on November 7, 2009 led to the escalation of the dispute between the students. Further, she asserted that the TDSB failed to properly account for the applicant’s learning disabilities in the manner Mr. Shafransky questioned the applicant and in assessing his culpability. In Ms. Schafer’s view, the applicant’s request for money from Student 2 was an attempt to obtain restitution for the student’s earlier kick which resulted in the purchase of a knee brace.

56I find that the applicant’s GLE teacher did appropriately intervene after the November 7, 2005 events and tried to help the applicant understand that it was not appropriate to threaten to get even with Student 2. I am satisfied that Mr. Shafransky’s actions appropriately accounted for the applicant’s learning disabilities and properly concluded that the applicant admitted threatening Student 2. I also accept Mr. Shafransky considered imposing the recommended ten day suspension for extortion but considered the effect of that length of absence on the applicant’s schooling and appropriately reduced the suspension to five days.

57I emphasize that my task here is not to second guess the TDSB’s decision to suspend or the length of the suspension. My focus is on whether the applicant’s special needs were considered in the suspension process, from investigation to discipline. There is no question in my mind that the TDSB did consider the applicant’s special needs throughout the process and accommodated them.

Homework during Suspension, Re-entry Plan and Safety Issues

58Ms. Schafer submitted that the TDSB had not properly resolved the issue with Student 2, failed to provide him with a peer tutor, did not prepare a written re-entry or safety plan, and failed to take steps to address the gang video, such as sitting down with the applicant to watch the movie with him and explain it to him.

59I am satisfied that the TDSB provided homework to the applicant during the suspension and properly prepared for his re-entry. I have outlined the steps they took above.

60With respect to the safety issues, there is no breach of the Code in the TDSB’s failing to take any special steps to protect the applicant in particular from the risks that all students face in gang recruitment, despite the literature that suggests that students with special needs may be targeted.

61I find that Ms. Schafer began looking for another school for the applicant primarily because of her concern that the applicant was getting involved with the wrong crowd.

Second Term Accommodations

62In addition to arranging a special timetable for the applicant in a very short period of time, and handpicking his teachers, the teachers met with a speech language therapist at Ms. Schafer’s request to discuss the applicant’s latest assessment and strategies for accommodations.

63I am satisfied that the accommodations provided during the second term were appropriate.

Second Suspension

64Ms. Schafer submitted that the TDSB failed to understand that the applicant was upset on the day of assault due to a poor result in an automotive test and that he lacked impulse control. In her view, if the school had been properly accommodating the applicant’s needs, he wouldn’t have been so highly stressed and the event may not have occurred. Accordingly, she did not think he should have been suspended at all and that the suspension was too long. She also criticized the school’s failure to properly advise the police about the nature of the applicant’s learning disability.

65In my view, there is an insufficient evidentiary basis to link the applicant’s assault to his special needs. Yes, he lacked impulse control, but the evidence does not sufficiently link a general lack of impulse control with an intentional assault. I accept that the TDSB was justified in concluding that the applicant had engaged in serious misconduct and that they reduced the length of the suspension in light of the applicant’s learning needs. Again, I will not overly scrutinize the specific discipline decision, but merely state that I was satisfied that the TDSB properly considered the applicant’s special needs.

66Ms. Schafer made a request for home instruction or an alternative placement during the 20 day suspension which was not provided by the school. I find that it was not a failure to accommodate by the TDSB to provide homework, rather than home instruction. There is no requirement to provide home instruction and it was not a necessary accommodation.

Transfer to Toronto Western and Withdrawal from the TDSB

67The Special Education Principal of Southwest Region and the Safe School Administrator met with Toronto Western to discuss the applicant’s special needs and the safety concerns. I am satisfied that there is nothing in the transfer that breached the Code.

Perception that Ms. Schafer was demanding

68Ms. Schafer testified that the teachers made comments to her that indicated that they viewed her as unreasonably demanding and that she felt that they wanted her to leave the school.

69I find that her perception that the TDSB viewed her as demanding was correct. I also find that she was demanding, and sometimes unreasonably so. Accordingly, I do not find that the TDSB breached the applicant’s rights by conveying some level of frustration with Ms. Schafer.

70I do not find that Central Tech did anything inappropriate to encourage her to take the applicant from the school. If the school expressed some sympathy with Ms. Schafer’s concerns about the applicant’s safety, that did not amount to inappropriately encouraging her to withdraw the applicant.

Conclusion

71The Human Rights Tribunal is not an alternative or substitute body to monitor and regulate the special education scheme under the Education Act. Generally the Tribunal will not second guess the IPRC placement and recommended accommodations and will not supervise a school’s implementation of an IEP. In order to establish discrimination under the Code, the evidence must demonstrate that the accommodations provided were significantly inappropriate or inadequate.

72Similarly, the Tribunal is not an alternative or appeal body from decisions under the Safe Schools scheme under the Education Act. In order to establish discrimination under the Code, the evidence must demonstrate that the school failed to appreciate or accommodate the impact of the student’s learning disabilities in assessing culpability or in choosing a penalty.

73For the reasons outlined above, I find that the TDSB did not breach the applicant’s rights under the Code. The Application is dismissed.