L.C. v. Toronto District School Board, 2011 HRTO 1336

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

L.C. by his Litigation Guardian J.L.C. Complainant

-and-

Ontario Human Rights Commission Commission

-and-

Toronto District School Board Respondent

DECISION

Adjudicator: Sherry Liang Date: July 14, 2011 Citation: 2011 HRTO 1336 Indexed as: L.C v. Toronto District School Board

APPEARANCES

L.C., Complainant J.L.C., Litigation Guardian and Fran Marinic-Jaffer, Representative (appearing April 9, May 26, 2010)

Ontario Human Rights Commission Christine Ellwell, Counsel

Toronto District School Board, Respondent Brenda Bowlby, Counsel

INTRODUCTION

1In this complaint, a student with autism spectrum disorder alleges that the Toronto District School Board (the "Board") violated his right to equal treatment in the provision of education services without discrimination on the ground of his disability, contrary to sections 1 and 9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The complainant is represented in this complaint by his mother, referred to here as his litigation guardian.

2The complaint was filed with the Ontario Human Rights Commission ("the Commission") on August 24, 2004. In May 2007, the Commission referred the complaint for a hearing before the Tribunal. In an Interim Decision dated September 2, 2008, 2008 HRTO 62, I dismissed parts of the complaint, to the extent those issues had been the subject of findings by the Special Education Tribunal ("SET") established under the Education Act, R.S.O. 1990, c. E.2 (the "Act").

3Following the Interim Decision, and an effort at mediation, the Commission filed revised pleadings in December 15, 2009, describing the issues remaining in the complaint.

THE ISSUES

4By the time of the hearing, the issues had been considerably narrowed from those contained in the original complaint. There are four areas in which it is alleged the Board discriminated against the complainant in the provision of education services, by failing to provide adequate accommodation of his disability during the time he attended an elementary school in the Board's system (referred to here as GPS):

• It is alleged that the Board failed to provide a competent and continuous Special Needs Assistant.
• It is alleged that a delay in providing necessary computer equipment to the applicant and the failure to provide adequate training to teachers in using the equipment discriminated against the applicant.
• The complaint also alleges that the Board did not provide the complainant with proper toileting support.
• The final area relates to the time spent by the complainant in the classroom, and it is alleged that the complainant was deprived of a full day of school because of the amount of time spent outside the classroom.

5The Commission's revised pleadings also refer to an issue regarding provision of a Parent's Guide to the complainant's mother, but this was not pursued at the hearing.

PROCEDURAL RULINGS

6The hearing into these issues took place over 6 days between January and May, 2010, during which I received oral testimony from six witnesses as well as documentary evidence from the parties. Most of the evidence was not in dispute but where there were disagreements about relevant facts I note them below.

7Before turning to the merits, I will briefly canvass some procedural issues that arose during the course of the hearing.

8At the outset of the hearing, I reviewed the material before the Tribunal, confirming that the complainant had not filed any additional documents or witness statements beyond those provided by the other parties, or separate pleadings. I asked the litigation guardian whether she wished to participate fully in the hearing, or was content to have the Commission present the case on her behalf. The litigation guardian did not seek to actively participate.

9The Commission was a party throughout the hearings, supporting the complaint and presenting evidence through the testimony of the litigation guardian. After four days of evidence, the litigation guardian indicated that she intended to have a representative for the remainder of the hearing. At that point, the Tribunal had scheduled one more day, April 9, 2010, to complete the evidence. The complainant's request to adjourn the hearing for the morning of April 9 was denied in the Tribunal's Interim Decision of April 6, 2010, 2010 HRTO 764.

10The respondent objected to the participation of the complainant's representative at this stage of the hearing and, as well, questioned whether the representative, Fran Marinic-Jaffer, was an individual entitled to appear before the Tribunal under the licensing requirements of the Law Society of Upper Canada. On April 9, 2010, after asking Ms. Marinic-Jaffer some questions about her activities assisting the complainant and others in legal proceedings, I decided to permit her to participate as the complainant's representative, as she appeared to fall within the Law Society's category of "unpaid friend" who provides legal services occasionally and without compensation. It should be noted that since my ruling, the Law Society's By-law has been amended to limit representation by an "unpaid friend" to no more than three matters per year. [By-law 4, s.30(1)]

11As well, given that Ms. Marinic-Jaffer was entering into the hearing during the cross-examination of the very last of the witnesses, and wished to ask questions of this witness, I asked her to describe to me the areas that she wished to cover in her questions and gave her direction about the proper scope of those questions.

GENERAL LEGAL FRAMEWORK

12Before turning to the evidence, I will discuss the general legal framework that I will apply to the issues.

13In my September 2008 Interim Decision, I described the statutory scheme for special education in Ontario as having 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 2008 HRTO 62 at para 42, referring to Eaton v. Brant County Board of Education, 1997 CanLII 366 (SCC), [1997] 1 SCR 241. The scheme of special education is consistent with the goals of section 15 of the Charter of Rights and Freedoms and the Code, that is, the removal of barriers to the equal participation of children with disabilities in education.

14The scheme for special education begins with the definition of "exceptional pupil" in the Education Act 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)]. Students identified as exceptional have the right to "appropriate special education programs and special education services". [s.8(3)]. Regulations under the 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)]. Depending on the child's language of instruction the process culminates in an appeal to either the English or French Special Education Tribunal, both specialized tribunals established under the Act.

15In this context, how does the Tribunal approach a complaint that a Board has discriminated against an exceptional pupil in the provision of special education programs and services within the meaning of the Act?

16In Schafer v. Toronto District School Board, 2010 HRTO 403 at paras 14-16, the Tribunal described its role in assessing a claim under the Code arising out of special education services as a limited one:

In 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.

However, 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.

Similarly, 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?

17The respondent here takes issue with the reasoning in Schafer to the extent that it suggests a reverse onus and assumes, in cases like this, the existence of a prima facie case of discrimination. In the respondent's submission, there is no "freestanding duty to accommodate"; and, thus, before requiring the Tribunal to engage in an accommodation analysis, the complainant and Commission must meet the initial onus to establish unequal treatment under section 1 of the Code.

18I agree with the respondent that in order to engage the duty to accommodate, there must be discrimination. In an employment context, the Tribunal has stated:

In other words, what the Code prohibits is discrimination – whether direct or adverse effect. The Code does not require accommodation in the absence of discrimination. Thus, an applicant who claims that her employer has breached its duty to accommodate her is really claiming that she has experienced direct or adverse effect discrimination because of disability, and that her employer cannot justify the discrimination by showing that the applicant could not be accommodated without undue hardship.

As is always the case under the Code, the applicant bears the initial onus of establishing a prima facie case of discrimination. Only at that point does the inquiry shift to whether the respondent employer fulfilled its duty to accommodate the applicant to the point of undue hardship: Ontario Human Rights Commission v. Simpsons-Sears Limited, 1985 CanLII 18 (S.C.C.), [1985] 2 S.C.R. 536 at para. 28.

Baber v. York Region District School Board, 2011 HRTO 213 at paras. 90-91.

19I do not read the Tribunal's decision in Schafer as dispensing with the usual onus to prove discrimination. The onus of proving discrimination, on a balance of probabilities, remains on the applicant throughout: see Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593. It may be, however, that the evidence required to establish a prima facie case of discrimination varies depending on the circumstances. In Tranchemontagne, for instance, the Court of Appeal took into account that it is "well-known that addicts and welfare recipients have been, and continue to be, the subjects of stigma and prejudice".

20In a case such as the one before me, it seems to me that where a child has been identified as an "exceptional pupil" entitled to special education services, the parties have accepted that the Board has a duty to accommodate the pupil by removing barriers to equal participation in education. Considering the statutory scheme for special education, which entrenches the right of exceptional pupils to accommodation in education, the decision that a child is an "exceptional pupil" would appear to represent an acknowledgement that without those services, that child would be denied equal treatment in education. As a general matter therefore, as stated in Schafer, it would be fair to say that in such circumstances it is "self-evident" that an "exceptional pupil" is unable to access the education system equally without accommodations.

21Having said this, it is still up to a complainant who has been identified as an exceptional pupil, and who alleges discrimination arising out of specific events, to establish on a balance of probabilities that those events constitute prima facie discrimination.

22As to what this initial onus consists of, the respondent relies on Eaton, above, as establishing the appropriate analysis in a case of disability-related discrimination. In the respondent's submission, Eaton established the availability of two analytical frameworks, which are mutually exclusive. The first, more conventional, discrimination analysis seeks to eliminate discrimination which is based on presumed, stereotypical characteristics. The second type of analysis, which is often more apt in a case involving disability, focuses on whether the respondent has discriminated against the complainant by failing to remove the "headwinds" that act as barriers to equal participation. See Eaton, above, paras.66-69.

23Under the two alternative analyses, it is submitted, the complainant and the Commission must prove either that the complainant was treated adversely in comparison to others because of his disability or that the Board failed to make the reasonable adaptations that would permit the complainant to participate in or benefit from the education service. Under the second line of inquiry, the onus is on the complainant and the Commission to show that the Board failed to provide the accommodations that were necessary in order to achieve equal access to education.

24Although the Eaton decision provides much useful guidance for this Tribunal in approaching issues regarding special education, it should be noted that it is a decision applying section 15(1) of the Charter and so does not consider the particular framework of the Code, under which the duty to accommodate is approached as a statutory defence to discrimination.

25In this case, I find that I do not have to reconcile the possible different approaches to the discrimination analysis. Whether under the Eaton analysis as part of the determination of whether the respondent has discriminated against the complainant because of a failure to provide appropriate special education services that correspond to the complainant's needs, or the Code-based Schafer analysis, I must decide whether the complainant had a disability-related need that the respondent failed to reasonably accommodate, denying him the right to equal access to education services. Ultimately, my disposition of this case does not turn on any determination about where the onus lies but on the factual determination of whether the actions of the respondent in providing the special education services at issue in this case amounted to a reasonable accommodation of the complainant's disability-related needs.

EVIDENCE AND FINDINGS

Background

26The complainant began school in the school year 1999-2000, in a special diagnostic Kindergarten class. As early as 1996, a medical assessment noted a global delay, and by 2000, doctors regarded him as meeting the diagnostic criteria for Autistic Spectrum Disorder. When he started school, he was non-verbal, and was not toilet trained. He needed assistance with most tasks of daily living, such as putting on or taking off his jacket. He did not grasp a pencil and was reported as not having play skills.

27In January 2000, the Board's IPRC identified him as an "exceptional" student, requiring significant education supports. The Board's decision was that he should be placed in a special education class, describing the applicant as having a "possible combination of behavioural, communication, intellectual, physical and/or multiple exceptionalities that interfere with learning in the JK and SK."

28In June 2000, the IPRC reviewed this decision, confirming the identification and placement decision. However, the complainant's mother expressed a preference for her son to be placed in his home school, GPS, in a regular program with supports, instead of in a special education class. The Board accepted her decision, and in September 2000, the complainant began his next school year at GPS. He was six years of age at this time

29During the time the complainant was at GPS, between 2000 and 2006, the IPRC reviewed his identification and placement periodically, each time confirming his identification as an "exceptional" student. The complainant was identified as having both a developmental disability and autism. In June 2001, the IPRC once again decided that the complaint should be placed in a special education class, stating that the complainant "has exhibited a combination of learning or other disorders that is of such a nature to require, for educational achievement, the services of qualified special education teachers and provision of appropriate support services." Once again, in deference to the complainant's mother's preference, the complainant remained in a regular class at GPS.

30In May 2004, in a further review, the IPRC decided that the complainant should be placed in a special education class. His mother appealed the placement decision to the Special Education Appeal Board (SEAB) and then to the SET (English). While the appeals were in progress, the complainant remained in the regular class at GPS. As of September 2006, he was ready to begin middle school and in that month, the SET confirmed the decision of the IPRC to place the complainant in a special education class for middle school.

31During the complainant's time at GPS, the Board produced a series of Individual Education Plans (IEPs) setting out the complainant's needs and the day-to-day classroom accommodations that he required to meet those needs. To summarize these IEPs, throughout this period the complainant required intensive support with communication skills, social skills, self-regulation skills and other skills, including toileting. Throughout, his report cards noted that he was functioning at a pre-kindergarten level.

32The allegations of discrimination therefore cover a period of time during which the Board believed the complainant would be better served in a different education placement. The Board's witnesses were candid in expressing the view that the complainant would have received more appropriate special education services in a special education class, rather than at GPS. However, given the appeal to the SET and the wishes of the complainant's parents that he remain at GPS pending the appeal, the Board provided programming and supports to the complainant while he was in a regular classroom. The complainant and the Commission allege that the programming and supports fell short of the Board's obligations under the Code.

Special Needs Assistant

Evidence

33One of the allegations is that the Board's failure to ensure competent and continuous teaching assistant support was discriminatory. Special Needs Assistants (SNAs) are hired by the Board to assist classroom teachers. They take direction from the classroom teacher, who is responsible for delivery of the curriculum. Often, they are assigned to a classroom but not to a particular student. In the complainant's case, the complainant's IEPs established his need for full time support from an SNA. The first IEP, dated March 21, 2000, stated that

[L.] presents with significant cognitive, language, social, fine and gross motor delays. He needs full support to follow directives and to sit at and participate in activities...

34The IEP noted that he required "81-100%" access to EA (SNA) support. When the complainant entered GPS in the fall of 2000, the Board hired a full-time SNA to assist him throughout the school day.

35Much of the work of the SNA was in assisting the complainant with developing a means of communication. As he was non-verbal, pictures or photos were used to depict objects or activities. The goal was to prompt the complainant to make choices, and also to teach him the concept of "first/then" through showing an activity followed by a reward. The SNA sat with the complainant in the classroom, and also assisted with the morning arrival at school, getting ready for the school bus at the end of the day, and going outdoors during the day. The complainant also required help at lunchtime as he needed assistance to feed himself. There was an additional room dedicated to the complainant's use, referred to as the "sensory room" or "calming room", where he would be taken if he showed impatience with being in the classroom through vocalizations or attempting to leave. The sensory room had a number of features, including a music player, various sensory objects and (in his last year at GPS) a computer with a special big red button to activate sounds.

36As discussed later, a large part of the work of the SNA in the last few years at GPS involved toilet-training activities.

37Throughout the complainant's time at GPS, he had one-on-one SNA support and his IEPs continued to indicate that he required "constant intensive support." At times, the SNA support was provided through one individual, in a full-time position. At other times, it was provided through one part-time SNA in the morning and one in the afternoon. There was also support during lunchtime, which was usually provided by another individual.

38A number of different SNA's worked with the complainant during his time at GPS. Changes to the SNA complement came about as a result of maternity leave, surplusing of staff and other issues. In his last school year at GPS, 2005-2006, there was a particularly high rate of turnover of staff, as a result of the departure of an SNA in the fall of 2005. The principal at the time, Jacqueline Spence, testified that in attempting to find a new SNA, she interviewed "in the neighbourhood" of a dozen individuals. A few individuals initially agreed to take the position but found it too challenging and quit quickly. Ms. Spence, as well as the complainant's classroom teacher, found themselves filling in for the SNA during certain times of the day, particularly at lunchtime, during this period.

39At this time, the complainant was 12 years of age and required assistance with toileting. Although he had been wearing diapers, the school agreed to participate, at the mother's request, in a habit-training program without diapers. This resulted in accidents during the school day, which required the SNA to assist in cleaning and changing the complainant. The toileting program also required frequent trips up and down the stairs, as the washroom the complainant was using was on a different floor from his classroom. In part because of this aspect of the work, it took some time to find a SNA willing to work with the complainant on a full-time basis and in the interim a number of SNAs came and went.

40A report by a Speech-Language Pathologist with the Board in September 2006 notes that there were frequent changes in SNA staffing during the 2004-2005 and 2005- 2006 school years, "which affected the consistency of his academic and communication programming." This individual made a number of recommendations, including some directed at improving consistency between staff. It should be noted that this report came on the eve of the complainant's move, as a result of the SET decision, to a special education classroom.

41The complainant's parents had expressed a preference to the Board that it employ a single full-time SNA to be with their son. In an Addendum to the IPRC decision of May 3, 2004, his parents recommended that a "single person with knowledge around autism be assigned as an educational assistant" to their son throughout the school day, as their son's autism involves difficulty with transitions and interruptions in routine. None of the IEPs stated, in relation to the SNA support, that the complainant required one individual throughout the school day.

42The Board's witnesses tended to agree that transitions were challenging for the complainant, but stated it was more about moving from the classroom to outside, and back to the classroom again, than about changing from one SNA to another during the course of the day. It is important to note that although there was a considerable turnover of SNA staff working with the complainant, the classroom teachers were consistent over the course of a school year.

43Beyond staff at the school, the Board has specialists such as speech-language pathologists, occupational therapists, psychologists and others who are available to assist with the delivery of special education services. The role of some of these individuals is to assist in the training of SNAs and classroom teachers who are working with exceptional students, and to develop specific strategies and routines as needed. Over the first two years of his schooling at GPS, during 2000-2001 and 2001-2002, one of the Board's Speech-Language Pathologists, Jewell Lofsky, made weekly visits to observe the complainant in the classroom, work with him on communication skills, and provide training to both the classroom teacher and the SNA on the development of the complainant's communication system.

44In the school year 2003-2004, the Board established a special team dedicated to supporting students with Pervasive Developmental Disorder/Autism Spectrum Disorder (PDD/ASD). One of its founding members, Mary Soucie, a Speech Language Pathologist who has worked with children with autism for the past 18 years, gave evidence about the involvement of herself and others members of the team with the complainant between 2003 and 2006. Members of this team visited GPS to observe and work with the complainant, and assist the SNAs and classroom teachers in program design and training. These visits were initiated through requests from the school principal. As an example, in one visit, the complainant was observed over the course of a day, and the result of this was a report and specific recommendations and training to the SNAs and teacher on the complainant's morning routine, amongst other things. Another area covered by the recommendations and training was how to improve consistency in approach as between the morning SNA and the afternoon SNA.

45Ms. Soucie's evidence was that as SNAs changed, members of the PDD/ASD team attended at GPS to train them. The principal at GPS would make requests for a member of the team to attend for training as staff changes occurred. Ms. Spence testified that she made such requests when there was a new SNA that appeared likely to stay on. She also testified that she was personally involved in the training of every new SNA hired to work with the complainant.

46Ms. Soucie also testified that it was not unusual for a student who required full-time SNA support to have two part-time SNAs. Often, the work is physically challenging and it is hard for one person to perform the work full-time. She found this to be the case with the complainant.

47There was little evidence about the qualifications of the SNAs assigned to the complainant, and SNAs generally. SNAs are hired by school principals from a centralized list compiled by the Board's human resources department. They can be placed in any number of different classroom settings including, as in this case, one-on-one support to a particular student. Their role is not to teach, but to support teachers in implementing the program as set by the teachers. As can be inferred from the above, their role in assisting the complainant included such varied tasks from assisting in communications training to toilet-training.

48While it does not appear that SNAs were required to have any particular expertise in autism at hiring, some of the SNAs hired to work with the complainant did have prior experience working with children with autism. All were given training on-the-job, including training from the Board's PDD/ASD team. Some attended workshops or courses offered by the Board.

Decision

49The complainant's representative's submissions focused in large part on pointing out gaps in the documentation and areas where there should have been more notes available, such as around the training of the SNA's, their qualifications, and their work with the complainant. I did not find these submissions compelling. Firstly, her review of the documentation was selective. Secondly, and more importantly, as the representative had not been in attendance during most of the hearing, this issue had never been addressed with the respondent or its witnesses. There is no basis from which to draw any inferences about the documents before me and whether they comprise some, most or all of the documents relevant to the issues covered by the oral evidence.

50The Commission submitted that the evidence showed a great deal of turnover in the SNA complement, as well as a lack of training.

51I find the complainant and the Commission have not proven the allegation that the Board failed to provide "continuous and competent SNAs" during the complainant's time at GPS or, in particular, that the inability to provide one full-time SNA at all times amounted to either discriminatory treatment or a failure to accommodate.

52First, it cannot be concluded on the evidence that any shortcomings in the provision of SNA support directly discriminated against the complainant on the basis of disability, contrary to section 1 of the Code. There was no evidence, and the Commission and the complainant did not assert, that the complainant was treated differently from other students in a similar position, because of his disability.

53Second, the evidence does not establish the provision of a single SNA throughout the school day was a necessary accommodation of the complainant's disability. There is no doubt that the parties agreed that the complainant required one-on-one SNA support at all times, and this is reflected in the IEPs. Consistent with this, the complainant had one-on-one SNA support throughout his years at GPS. More than this, however, the complainant's parents wished the one-on-one SNA support to consist of a single SNA throughout the school day.

54I accept the litigation guardian's evidence that the nature of her son's disability results in difficulties with transitions and changes in routine. She believed that he therefore required a single SNA throughout the day. But I also take into consideration the evidence at the hearing, as described above, that the complainant's difficulties in transition were not as much to do with dealing with different people during the course of the day, as dealing with the arrival at school, and transitioning from one part of the day to another or one place to another.

55There were times when the complainant had the same SNA throughout the school day. At other times, when the SNA support was provided through two part-time SNAs, the Board's PDD/ASD team and school administration made efforts to ensure continuity between them. The complainant also had consistent classroom teachers each year, who were ultimately responsible for carrying out his educational programming. On all the evidence, I cannot find that the complainant's disabilities required that he be provided a single SNA throughout the school day in order to access his educational programming. Although it may be that in an ideal world, a pupil in the complainant's position might have been better off if he had a single SNA throughout the entirety of his school day, I cannot find that not ensuring this amounted to discriminatory treatment under the Code. As the Tribunal observed in Schafer, the issue is not whether the accommodation provided was the ideal accommodation, or what the parents may have preferred. The issue is whether the respondent failed to reasonably accommodate a disability-related need, denying him the right to equal access to education services.

56To the extent that the complaint is also about the failure to ensure that SNAs remained consistent over time, the evidence was that when new SNAs were hired, the PDD/ASD team as well as the school administration made efforts to ensure that they received consistent direction and training. It is not surprising that staff turnover had some impact on the consistency of the complainant's programming, and this was noted by the Board's Speech Language Pathologists, but the Board did what it could to minimize this impact. Although no one agrees that the turnover in staff was a positive thing for the complainant, it is not clear to me what the respondent could have done to compel SNAs to remain on the job. What it could do, and did do, was to provide training and support to promote consistency upon these staffing changes.

57Given all of the above, I do not find that the failure to ensure that SNA support was provided through one full-time individual throughout either a school day or over time resulted in either differential treatment in access to educational services, or amounted to a failure to provide necessary accommodation of a disability.

58I also find that there is no basis to the allegation that the Board failed to provide "competent" SNAs. There is no evidence that any of the SNAs hired to support the complainant lacked any qualifications essential to their positions. It may be that some SNAs did not possess any formal training or experience in autism before they took the position, but some did, and all received on-the-job training. The evidence did not establish that this was insufficient to meet the needs of the complainant's educational programming.

59Finally, it is not clear to me what "requirement, qualification or factor" under section 11 would give rise to a claim of constructive discrimination, and the Commission and complainant did not rely on section 11.

Delay in Obtaining a Dedicated Computer

60The complainant and the Commission allege that the delay in obtaining a dedicated computer for the complainant's use discriminated against him, and that staff were inadequately trained on the computer after it arrived.

61In the fall of 2003, the litigation guardian provided the Board with a report from an Occupational Therapist with COTA (Comprehensive Rehabilitation and Mental Health Services), which recommended that the complainant "will also benefit from developing some keyboarding skills" and provided some examples of computer equipment that "would be beneficial" for the complainant. A more detailed report from the same therapist in May 2004 recommends that, "in order to improve fine motor skills and abilities for functioning in the classroom environment, the following recommendations should be considered", and suggests that the complainant be allowed opportunities for use of a computer in order to develop an alternative skill for written communication. The report states that he would "initially require complete assistance for learning this skill". As well, the report states that the complainant "may benefit" from use of certain computer hardware such as a special mouse. Based on these reports, the litigation guardian requested that the Board provide the complainant with a dedicated computer.

62COTA is a private agency that receives contracts through the Ministry of Health to provide occupational therapy and other support to individuals with mental disabilities. Board staff may recommend to a student's parent that they seek the services of COTA, but COTA services are not directly linked to the provision of education services by the Board. When the Board receives reports from COTA, its staff take them into account in the design or implementation of special education services, but ultimately make their own assessment about the necessity of the measures recommended by COTA.

63It appears that school staff was prepared to incorporate the use of a computer into the complainant's programming. An IEP from October 2003, apparently completed by the then school principal, has a handwritten notation referring to the use of the computer hardware suggested by COTA as part of personalized equipment to be made available under "General Classroom Accommodations". The next IEP does not have the same reference.

64The evidence was that, at this time, the Board's PDD/ASD team did not believe that the complainant required a dedicated computer. In the evidence of Sharyn Shell, a member of the Board's PDD/ASD team, in order to access Ministry of Education funding for such a computer, it would have to be established that the student was not able to access the curriculum without the equipment requested. The opinion of the PDD/ASD team was that the complainant was not at a level of functioning that he would derive any benefit from a dedicated computer, given that he was still being taught basic choice-making and cause/effect. These were areas that could be taught as well, in the opinion of Board staff, without a computer. Board staff felt that to the extent the complainant was using the picture system to make choices, it was still with assistance and until he was able to make those choices independently, there would not be much benefit from using a computer to teach the same concepts. The evidence of the Board's witnesses, which is supported by the documentary evidence, is that the complainant still required "hand-over-hand" assistance in most activities, whether it be feeding, making choices based on pictures, or using a computer. As well, Board staff took into account that there were computers in the classroom and the school library. From the complainant's report cards, it appears that with hand-over-hand assistance from the SNA, the complainant did make use of these computers from time to time.

65A report by one of the Board's Speech Language Pathologists (SLP) from September 2004, based on observations and interviews from April 2004 to September 2004, states that although the complainant might benefit from the computer equipment suggested by COTA to teach cause and effect, those can also be taught through other means. This SLP recommends teaching communications skills to the complainant through the use of concrete objects, gestures, photographs and pictures. These were in fact the techniques being used in the complainant's classroom.

66It appears that the GPS administration was prepared to request special Board funding for a dedicated computer, as of January 2004. However, it is not clear from the evidence whether such an application was made at that time. Despite their reservations about whether it would be of concrete benefit, in April 2005, through the PDD/ASD team, an application for a dedicated computer was made. Ms. Shell testified that because of the repeated requests from the litigation guardian, she ultimately "broke a few rules" to obtain the funding for the computer, by essentially finding a SLP who was sympathetic to the use of technology in the complainant's programming. The report of this SLP, in February 2005, documents a session with the complainant where he was able to use a specially adapted mouse, without hand-over-hand assistance, to start music playing on the computer. He was not able to use the keyboard or a regular mouse.

67In September 2005, a computer was placed in the complainant's sensory room. The computer had a large red button in place of a mouse. When the complainant pressed on the button, the computer produced sounds and visuals, such as music and fireworks. Despite the observations of the SLP in February 2005, the evidence of the Board's witnesses was that the complainant still required hand-over-hand assistance to push on the button, although he reacted very positively when the sounds were produced. He did not show independent interest in using the computer, and he was not able to use the keyboard.

68When the computer arrived at GPS, the complainant's teacher and SNA were both trained by the supplier on the use of it.

69Having regard to the above, the evidence does not establish that a dedicated computer was essential to the complainant's ability to access his educational programming. From time to time, it was suggested that it might be "beneficial", but the evidence was that the purposes for which it was thought to be beneficial (primarily, to teach "cause and effect" or choice-making) were the same purposes served by other existing methods. The delay in obtaining a computer for the complainant's sole use did not result in unequal access to educational services nor, alternatively, did it amount to a failure to provide a necessary accommodation.

Habit Training

70Throughout his time at GPS, the complainant was not toilet trained. Up until the spring of 2005, he wore pull-up diapers to school. As part of his programming, his SNA worked on toileting skills, through the use of the picture-based system being used to develop communication and choice making, and the IEPs included references to toileting. In the spring of 2005, the litigation guardian requested that the GPS assist in a habit training program designed by an outside consultant from Community Living Toronto, in which the complainant would no longer wear a diaper. As a result, he began to attend school without a diaper, and the school was given a schedule outlining the steps to be taken throughout the day. Essentially, the complainant was to be taken to the washroom on a specified schedule, which was (initially) every 60 minutes if he voided and every 90 minutes if he did not, and required to stay for 15 minutes. The habit training schedule was incorporated into the complainant's IEP. After a few months, the schedule set by the consultant was changed to require that trips to the washroom be made every 45 to 60 minutes.

71The habit training continued through to the end of the 2005-6 school year, after which the complainant left GPS. Although there is one IEP from 2005-6 which sets out a habit training schedule that differs from the one provided by the consultant, the evidence was that this was a draft IEP and not the one signed by the principal. Other IEPs incorporate the schedule set by the consultant. Staff were also asked to keep detailed logs of every trip to the washroom and incident.

72The implementation of the new habit-training program was challenging. The private washroom that was available for the complainant's use was on a different floor from his classroom, and the schedule therefore required hourly trips up and down stairs. The complainant required help with dressing and undressing. When there were accidents, it might require up to an hour to clean up, a task made more complicated by the fact that the complainant always wore shirts tucked into his pants and therefore required an entire change of clothing. The complainant not infrequently had accidents, in the stairway, in the classroom, or in the hallway.

73Early on, the complainant's SNA objected to providing habit-training to the complainant, indicating that it was very onerous, but the Board confirmed its commitment to it and, as stated above, continued it until the complainant left GPS.

74The litigation guardian testified that GPS was not completing the logs as requested and therefore believed that it was not implementing the habit training program.

75The evidence of Ms Spence was that the school developed charts for the SNA to complete, and these were in use. The habit-training schedule was constantly being adjusted, in consultation with the litigation guardian and the consultant, initiated either by the school or by the litigation guardian. Ms Spence testified that much time was put into the habit-training program, both in terms of consultation and implementation.

76The complainant's representative submitted that the respondent did not follow the habit-training protocol as required. The Commission submitted that the evidence showed that school staff was not completing the habit-training charts consistently. Also, it suggested that the Board could have installed a change table in the school and the failure to do this resulted in a failure to appropriately accommodate.

77I find on the evidence that GPS made considerable efforts to assist in the complainant's habit training program. The respondent incorporated toilet training activities into the complainant's IEPs. At first, this was done as part of teaching the complainant a communication system and choice-making. Later, when the litigation guardian wished the habit training to occur more intensively, the respondent's personnel agreed to this despite the many challenges posed by the eliminating the use of a diaper. The school cooperated in the detailed program devised by an outside consultant. Although the litigation guardian was unsatisfied with the school's compliance with the documentation around the habit-training program, it is clear from the evidence that school staff did keep records, even if they were lacking for some periods of time. In any event, whether or not there were adequate records, there is no evidence that the school failed to provide the complainant with necessary accommodations in this area and, in fact the evidence is to the contrary.

Time Spent in Classroom

78The final allegation of discrimination relates to the time the complainant spent outside of the classroom. It is alleged that he was deprived of an academic program as a result.

79As is apparent from the above, there were many obstacles to the complainant's consistent attendance in the classroom. One of the main activities that took the complainant out of the classroom was the habit-training schedule implemented in March 2005, which required him to be taken to the washroom up to every hour, and to remain there for fifteen minutes. When he had accidents, which was not infrequent, this extended his time out of the classroom or required him to exit the classroom. In addition, the complainant sometimes had difficulty remaining in the classroom, due to over-stimulation, and expressed this through attempting to leave, or loud vocalizations. In order to calm him, and because this also disturbed other students, the SNA would take him to the sensory room for a time, or for a walk in the hallway.

80I find that, although the complainant did spend portions of his school day outside the classroom, this was not due to a failure to accommodate his disabilities but, rather, due to the complainant's own needs in relation to the habit-training program and his disability-related needs to leave the classroom setting for a less stimulating environment from time to time.

CONCLUSION

81Many of the events covered by this complaint took place during a time when the respondent had made a decision that the complainant's best interests lay in a special education classroom, given his needs, but was waiting for the results of the appeal to the SET. Ultimately, the respondent's decision was upheld by the SET in September 2006. Until then, the complainant's teachers, school administration, Board administration and Board PDD/ASD team attempted to provide the necessary accommodations within the setting of a regular classroom. They recognized that their ability to provide these accommodations within the GPS environment was not optimal, but put considerable efforts into providing the complainant with the necessary accommodations, even while believing that his educational interests would be better served in a special education setting.

82In reviewing all the circumstances, it would not be difficult to find some ways in which the complainant's education was less than ideally served during the time he was at GPS. But the Tribunal has often stated that the search for accommodation is not about the search for the ideal. As expressed in Schafer above

(...)[t]he 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?"

83In this case, I have found that some of the alleged deficiencies in the accommodation measures were not supported by the evidence. I have also found that some of the alleged deficiencies were not linked to a disability-related need, resulting in unequal treatment on the basis of disability. I have also found that the Board's accommodation measures were, taking all of the circumstances, reasonable and responsive to the complainant's needs.

84In the result, the complaint is dismissed.