Loriann Contini v. Rainbow District School Board, 2011 HRTO 1340

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Loriann Contini

Applicant

-and-

Rainbow District School Board

Respondent

INTERIM DECISION

Adjudicator: Alison Renton

Date: July 15, 2011

Citation: 2011 HRTO 1340

Indexed as: Contini v. Rainbow District School Board

APPEARANCES

Loriann Contini, Applicant ) Self-represented )

Rainbow District School Board, Respondent ) Brenda Bowlby, Counsel

1The applicant filed an Application with the Tribunal under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on August 26, 2009, alleging discrimination on the basis of her disability in goods, services and facilities, and specifically the respondent’s failure to provide bus transportation for her school-aged children from their home to their school because of her disability.

2The respondent filed a Response dated November 9, 2009, as well as a Request for Order During Proceedings (“RFOP”) requesting that the Tribunal dismiss the Application on the basis that it is outside the Tribunal’s jurisdiction as transportation services for the applicant’s children is not a service that is provided to the applicant.

3The Tribunal issued an interim Decision, 2010 HRTO 214, in which it determined that a conference call hearing would be scheduled to hear the parties’ submissions on whether the Tribunal has jurisdiction over the issues raised in the Application and specifically whether the respondent provides “services” within the meaning of the Code to the applicant. A conference call hearing was held on June 7, 2010 and both parties participated.

4Following the conference call hearing, the Tribunal issued a Case Assessment Direction (“CAD”) dated October 18, 2010 in which it sought submissions from the parties addressing the Tribunal’s Decision in M.O. v. Ottawa Catholic District School Board, 2010 HRTO 1754 (“M.O.”) and its conclusion that transportation services were a “service” within the meaning of the Code. The respondent filed submissions dated October 29, 2010 and the applicant filed submissions dated November 2, 2010. The respondent filed additional submissions dated November 2, 2010 responding to the applicant’s submissions.

The Applicant’s Position

5The applicant has two children who, at the time of filing her Application, were in Grades 3 and 4, and who attend school with the respondent school board. While the applicant lives close to the school, because of her own disability, she is unable to get her children to school herself. Because of the physical proximity of their house in relation to the school, and the age of the applicant’s children, as of the filing of the Application, the children do not meet the requirements of the respondent’s transportation policy with respect to bussing. The applicant had made special requests to the respondent for her children to be bussed to school. For several years the respondent had granted this request, but in August 2009 it refused to grant the request. The applicant’s husband, who is a teacher at the school at which the children attend, drives them to school.

6The applicant submits that despite the physical proximity of her house to the school and her husband driving the children to school, the respondent’s policy on bussing is discriminatory against her. She states that she wants to get her children ready for school and watch them get on and off the bus so that she can meaningfully contribute to her family. She alleges that her self-worth and dignity are continually attacked within society and that the respondent has not taken into account the special needs of persons with disabilities in denying her request for bussing services. She submits that the Tribunal does have jurisdiction over the issues raised in her Application and that the bussing services being provided are not directly offered to children, but to parents who are taxpayers.

7In relation to the Tribunal’s decision M.O., the applicant submits that she is not abusing the bussing services provided by the respondent, but, instead, is asking that it ensures that the respondent’s policies take into account people with mobility disabilities. She again confirmed her position that when the children are bussed, the respondent is providing a service not just to the children, but also to their parents. She compared this with documentation pertaining to children, such as suspension letters and individualized education plans, which need to be signed by a parent.

The Respondent’s Position

8The respondent submits that it does not provide any services to parents. Transportation services are not required under the Education Act, R.S.O. 1990, c. E.2, as amended, but, when provided, they are provided to and for the benefit of the student, not the parent, even if the student is a minor. The Education Act allows for parents to be informed about their child’s education, such as sending report cards home, but these are reporting obligations, not services to the parents.

9There is a sliding scale in providing transportation services to students, focussed on the child’s age and the walking distance between his/her home and the school. The older the child, the further the distance required between the child’s home and the school. Because of the age of the applicant’s children and the proximity of their home to the school, they no longer qualify for bussing. The respondent submits that the applicant is seeking special consideration that other parents do not receive and is not claiming that she is being discriminated against because other parents receive a benefit that she does not receive.

10While there is a legal obligation to accommodate the needs of a child with a disability for transportation purposes, there is no legal obligation, the respondent submits, for it to provide transportation services that benefit a parent such as the applicant. In addition, the applicant’s husband, who is a teacher at the school, is equally responsible for the transportation of their children to school and in fact drives them to school.

11For the Tribunal’s consideration, and in addition to other case law provided to the Tribunal, the Respondent referred to Habetler obo Habetler v. Sooke School District and B.C. (Ministry of Education), 2008 BCHRT 85 in support of its position that the services that is provides are to and for the benefit of the student and not the parent.

12The respondent submits that the Tribunal decision M.O. supports the respondent’s position in that when a school board decides to provide transportation services, those services are provided to and for the students and not to or for the parents. The respondent highlights para. 59 of M.O., in which the Tribunal observed that transportation is “ancillary to its core function of providing educational services”, and that educational services are provided to students and not their parents. It also points out that further in para. 59, the Tribunal stated that providing transportation services to students is “to support the ability of students to access education”, noting that this finding underlines that transportation is a service, which is provided to students and not to their parents.

Background

The Education Act

13Under the Education Act, the provision of transportation for students is discretionary for an applicable school board. Section 190(1) of the Education Act provides:

(1) A board may provide for,

(a) a pupil who is enrolled in a school that that board operates;

(a.1) a resident pupil of the board who is enrolled in a school operated by another board under an agreement between the boards;

(b) a pupil in respect of whom the Minister pays the cost of education under the regulations; and

(c) a child over two years of age who may, under the regulations, be admitted to a program for hearing-handicapped children

transportation to and from the school that the pupil attends.

The Policies

14The respondent has a joint transportation policy with the Sudbury Student Services Consortium, which consists of the respondent, le Conseil scolaire catholique du Nouvel-Ontario, the Sudbury Catholic District School Board, and le Conseil scolaire du district du Grand-Nord (“the joint policy”). The joint policy sets out, amongst other things, the minimum walking distances for students between their home and their school, based upon their grades. Sections of the joint policy include:

1.3 The school boards will provide transportation, without charge, to students whenever such transportation is warranted in accordance with the guidelines outlined in this policy.

2.1 Health and Safety

The Consortium will provide special transportation to students when warranted for health and safety reasons to overcome traffic or other forms of hazards.

2.2 Special Transportation

The Consortium may provide transportation for students who cannot access regular modes of transportation. Transportation will be provided at the discretion of the Director of Education or designate for injuries/medical conditions where the lack of access to school transportation presents a hardship for the parent/guardian.

15The respondent also has a policy, P.6.07, in its own policies and procedures manual pertaining to transportation (“the policy”). The policy is more detailed than the joint policy, and contains similar, although not always the same, language as that in the joint policy. For example, the calculation of distance between the student’s home and their school is different, as is the notification to parents and guardians about video cameras being installed on buses. The policy also contains sections that are not included in the joint policy, including guidelines for kindergarten students, guidelines for pick-up and drop-off locations, and section 7 called “Parental Requests for Special Transportation Arrangements”.

16While the policy contains language similar to sections 2.1 and 2.2 of the joint policy, the policy does not describe it as “special transportation”. Instead, the policy uses the words “regular transportation” at section 1.5 and “transportation” by itself at section 1.6. Those sections state:

1.5 The [B]oard will provide regular transportation to students when warranted for safety reasons to overcome traffic or other forms of hazards.

1.6 The Board may provide transportation for students who cannot access regular modes of transportation. Transportation will be provided at the discretion of the Director of Education or designate for injuries/medical conditions where the lack of access to school transportation presents a hardship for the parent/guardian.

17As noted above, the policy also contains section 7, which outlines a process for a parent to follow in making a request for “special transportation arrangements” for his/her child(ren). There is a process for requests involving children receiving “special education (exceptional students)” in section 7.4 and a different process for “all other requests” in section 7.5. It is helpful to reproduce most of section 7 (except for section 7.4 as this Application does not involve children receiving special education) as its language plays a role in the Tribunal’s determination of whether the respondent provides a “service” in the circumstances of this Application.

7. PARENTAL REQUESTS FOR SPECIAL TRANSPORTATION ARRANGEMENTS WILL PROCEED AS FOLLOWS.

7.1 Parents who call the board office, trustees or the consortium, will be redirected to the principal. If the parent has contacted the principal, he/she will be directed to contact the Superintendent of Business or the Superintendent of Special Education.

7.2 Principals are to direct their requests for special transportation arrangements for exceptional students (special education) to Superintendent of Special Education. All other requests are to be sent to the Superintendent of Education.

7.3 This process recognizes that principals know their students and are in the best position to investigate the request and make a recommendation in relation to the situation. Principals are expected to uphold Board policy and would recommend an exception only in rare circumstances.

7.5 The following is the process for transportation arrangements for all other requests:

Other Students with special circumstances (not involving special education e.g. custody, safety…)

• Principal receives request from the parent

• Principal investigates to ensure that the request is valid

• Principal sends e-mail to Superintendent of Business (including name, address, telephone number and reason for the request)

• Superintendent of Business investigates further (if required)

• If approved, Superintendent of Business forwards email [sic] marked “approved” to the transportation consortium and the principal.

7.6 When approval for exceptions to the transportation policy are granted, principals are asked to inform the parent in writing with copy to the appropriate Superintendent that their request has been approved for this school year only. All other approvals will be made on an annual basis unless otherwise stated.

Analysis

18Section 1 of the Code provides:

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

19Section 34(1) of the Code, in part, provides:

If a person believes that any of his or her rights under Part I [which includes section 1] have been infringed, the person may apply to the Tribunal for an order under section 45.2, …. [emphasis added]

20The Tribunal’s jurisdiction is based on the Code, which prohibits discrimination with respect to goods, services and facilities on the basis of certain protected grounds listed in the Code. If an Application does not implicate one of those social areas, the Code does not apply to the situation as alleged. The Tribunal has dismissed a number of applications, which have not implicated one of the Code’s social areas, stating that it does not have a general power to inquire into all aspects of society and all difficulties and relationships that an individual experiences in life (see, for example, Bark v. Battel, 2010 HRTO 886 and Thiesen v. Ontario (Attorney General), 2009 HRTO 1781).

21Boards of education have been found to be subject to the Code with respect to the provision of services with respect to a student’s education and educational services (see Jaffer v. York University, 2010 ONCA 654, [2010] O.J. No. 4252 (C.A.) at para. 26 and Peel Board of Education v. Ontario Human Rights Commission (1990), 1990 CanLII 6605 (ON HCJ), 72 O.R. (2d) 593 (Div. Ct.)). However, I recognize that this Application is not about an educational issue, but rather a transportation issue in an education context that arises because of the disability of a mother of two students.

22The courts have repeatedly stated that the provisions of the Code must be given an expansive, liberal and purposive interpretation (see Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513 at para. 33; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. at para. 44; and Canadian National Railway Co. v. Canada (Human Rights Commission), [1987] 1 S.C.R. 114 at 1134).

23The Supreme Court of Canada has stated that when the legislature intends to limit the scope of a statutory provision, it usually says so clearly (see Dopelhamer v. Workplace Safety and Insurance Board, 2010 HRTO 765 at para. 27, and Merk v. International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771, 2005 SCC 70 at para. 3.).

24The concept that “services” under section 1 of the Code should be broadly interpreted has been endorsed by the Ontario Divisional Court in Ontario (Attorney General) v. Ontario Human Rights Commission, 2007 CanLII 56481 (ON S.C.D.C.) (“Braithwaite”).

25“Services” as found in section 1 of the Code is prefaced by the words “with respect to”, which, in themselves, are not qualified. The Supreme Court of Canada, in Markevich v. Canada, 2003 SCC 9, [2003] 1 S.C.R. 94, at para. 26 and Nowegijick v. The Queen, 1983 CanLII 18 (SCC), [1983] 1 S.C.R. 29, at p. 39, have both stated that “in respect of”, should be broadly interpreted and must have some connection between two related subject matters. Given the expansive, liberal and purposive approach to interpreting the Code I find that the words “with respect to” should also be broadly interpreted.

26In prohibiting discrimination by service providers like the respondent school board, I find using the statutory interpretation principles referenced above that it was clearly the Legislature’s intent to ensure that all those with whom the respondent necessarily interacts in providing those services – including parents and students – are treated equally and without discrimination. Given the context of educating minor children in which there are necessarily interactions between the school boards and parents, including the transportation of children to school, it is inconceivable that the Legislature would have intended that a school board could discriminate against the parents of the children it teaches.

27Applying the above, I find that there is a service relationship between the applicant and the respondent on the facts of this case and that the Application can continue. The respondent is providing a benefit when it transports its students by bus to the school. The Tribunal’s decision in M.O. recognized this in another school board case involving the transportation of students (see para. 59 of that decision). One can also envisage that the applicant, who has a mobility disability, derives a benefit when the respondent provided bussing for her children, as are other parents who are not required to transport their children to school, by walking or driving.

28In the circumstances of this case, I place importance on the wording of the respondent’s own policies and particularly the language of section 7. Section 2.2 of the joint policy, and 1.6 of the policy refer to the hardship by a parent. Section 7 of the policy not only contains a heading called “Parental Requests for Special Transportation Arrangements” but it requires that the request originate from the parent and that the principal inform the parent of the respondent’s decision with respect to the request. That this respondent has included references to parents in its own policies is enough to establish a service relationship, in the facts of this case, between the applicant and the respondent. To follow the respondent’s submissions would mean that a parent who makes a request under this policy and is told that the respondent will not consider the request because of the parent’s sexual orientation, for example, could not have the basis upon which to file an application before the Tribunal. That would be, in my view, contrary to the Code.

29I find Habetler, the British Columbia decision referred to by the respondent, and its quotation from University of British Columbia v. Berg (1993) CanLII 89 (SCC) about what constitutes a service “customarily available to the public”, to be distinguishable from the Application before me because of the difference in the language between the Code and the British Columbia Human Rights Code, R.S.B.C., 1996, c. 210, as amended (“the BC Code”).

30The BC Code, in section 8(1) includes the words “customarily available to the public”. As Mr. Justice Lamer, in Berg, noted at p. 24, “[t]he human rights legislation of Ontario (Human Rights Code, R.S.O. 1990, c. H.19) contains no such limiting words”. Accordingly, I do not find that Habetler is of assistance to me in determining this Application.

31I also find the other cases (Fulton-Bell v. Kawarth-Haliburton Children’s Aid Society, 2009 HRTO 1769, Sweezey v. Ontario (Attorney General), 2009 HRTO 1296, and Padayachee v. Peel Children’s Aid Society, 2010 HRTO 709), upon which the respondent relies, to be distinguishable. Children’s Aid societies and the Office of the Children’s Lawyer are organizations with very specific mandates to advance specific statutory objectives to protect children and which may include taking a stance against the interests of a parent. This is very different from the context of a school board and its provision of educational services and is not relevant here.

32Succi v. Ontario (Attorney General), 2009 HRTO 399, another case upon which the respondent relies, is also distinguishable. In that case the Tribunal dismissed the application on the basis that the applicant could not identify how the respondent had jurisdiction over lawyers and judges who are overseen by other regulatory bodies, as well as it lacked jurisdiction to review or vary an order of a judge. That is not the fact situation before me.

33As set out above, the Application shall continue.

34However, to be clear, the determination that the Application can continue is not a determination that the Application will ultimately be successful. Although no determination has yet been made on the merits of the Application, the applicant has a hurdle to meet arising from the facts of this case. She admits that she enjoys the benefit she seeks from the respondent – having her children transported to school. Her husband, with whom she lives, is a teacher at the school and drives their children to school. The applicant will therefore have to establish how the respondent’s failure to provide this service discriminates against her by having an adverse impact on her, an essential requirement in proving discrimination, in the circumstances of this case.

35In Battlefords and District Co-operative Ltd. v. Gibbs, 1996 CanLII 187 (SCC), [1996] 3 S.C.R. 566 at para 20, the Supreme Court of Canada addressed what it called “the appropriate definition of discrimination”, and quoted with approval from pp. 173-75 of Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143:

What does discrimination mean? The question has arisen most commonly in a consideration of the Human Rights Acts and the general concept of discrimination under those enactments has been fairly well settled. There is little difficulty, drawing upon those cases in this Court, in isolating an acceptable definition…. I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.

36The Ontario Court of Appeal in Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para. 109 stated that “…the onus of providing discrimination on a balance of probabilities remains on the claimant throughout”. It also stated, at para. 104:

However, in my opinion, the goal of protecting people from arbitrary or stereotypical treatment or treatment that creates disadvantage by perpetuating prejudice is actually incorporated into two stages of the prima facie case analysis: i) determining whether the treatment in issue truly creates a disadvantage; and ii) determining whether the protected ground or characteristic truly played a role in creating the disadvantage.

37Accordingly, the Tribunal directs the applicant to provide written submissions to the Tribunal, copying the respondent’s counsel, on the following issue:

a) how do the respondent’s policies disadvantage or have an adverse impact on the applicant in the circumstances of this case.

38If the applicant prefers to provide those submissions orally instead of in writing, she is directed to advise the Tribunal, copying the respondent’s counsel, within 5 days of the date of this Interim Decision, following which the Tribunal will schedule a conference call hearing. If she prefers to proceed in writing, she is directed to provide written submissions to the Tribunal, copying the respondent’s counsel, within 10 days of the date of this Interim Decision. If the applicant does not respond at all, her Application may be dismissed as abandoned.

39The Tribunal does not require submissions, at this point, from the respondent on this issue.