HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N :
N.P. by her litigation guardian L.P.
Applicant
-and-
Ottawa-Carleton District School Board
Respondent
decision
Adjudicator: Michelle Flaherty
Indexed as: N.P. v. Ottawa-Carleton District School Board
APPEARANCES
N.P., Applicant ) Paul Jakubiak, Counsel
Ottawa-Carleton District ) Roger Mills, Counsel,
School Board, Respondent ) and Kati Flaro, Student-at-Law
1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), dated June 17, 2009. The underlying complaint was filed with the Ontario Human Rights Commission on April 25, 2005.
2The Application alleges discrimination because of disability, reprisal and breach of settlement in relation to an incident that occurred on February 7, 2005. The applicant was 12 years old at the material times. She has a developmental disability and had been placed in a grade one class in Sawmill Creek School.
3On February 7, 2005, when the applicant did not comply with a rule requiring students to bring their backpacks into the classroom, staff at Sawmill Creek School intervened and insisted that she follow the rule. In essence, the applicant alleges that the respondent’s staff berated her and failed to accommodate her disability in its handling of the incident.
4The Application initially made a number of other, broader allegations of discrimination. However, in two earlier Interim Decisions, the Tribunal dismissed portions of the Application, concluding that it would be an abuse of process for them to proceed: see 2010 HRTO 2422 and 2011 HRTO 532. The Tribunal directed that the Application proceed only with regards to the February 7, 2005 incident.
5On September 26, 2011, the Tribunal held a hearing on the merits of the Application. The Tribunal listened to a recording of the February 7, 2005 incident and heard the evidence of L.P., the applicant’s next friend. The applicant did not testify. The Tribunal also heard the evidence of Ron Brown, a learning support teacher at Sawmill Creek School, and Joan Wilson, who was the principal of Sawmill Creek School in 2005.
6For the reasons that follow, the Application is dismissed. I am not satisfied that either the requirement that the applicant bring her backpack into the classroom or the respondent’s response to her refusal to do so constitute discrimination under the Code. There is no basis to conclude that the incident constituted a reprisal or a breach of settlement.
THE FACTS
7Sometime in the afternoon of February 7, 2005, the applicant was advised by other students and by staff that she must bring her backpack from the hall into the classroom. She was told that this was a rule that applied to all students and that, “like everyone else”, she must comply with it.
8The applicant refused to bring her bag into the classroom. Her teacher intervened and repeatedly coaxed the applicant to comply with the rule. While the teacher’s tone of voice was gentle throughout the interaction, she became more insistent when the applicant maintained her refusal. The teacher did not raise her voice or make any disparaging comments about the applicant or others. She offered to help the applicant to bring the bag into the classroom and she gave the applicant an opportunity to ask a question as the incident was unfolding. At times during this interaction, the applicant cried. At one stage, the applicant indicated that she was hungry. The teacher responded that the applicant could have her snack once she had brought her backpack into the class. It is not clear from the recording whether the teacher actually removed the applicant’s snack from her backpack. In any event, the applicant became particularly distraught when she was told she could not have her snack until she had moved her bag.
9When the applicant maintained her refusal to move her backpack, an educational assistant who was in the applicant’s classroom that afternoon went to Mr. Brown’s office and asked for his assistance. Mr. Brown is a learning specialist, with qualifications in special education. He testified that part of his role at Sawmill Creek School is to intervene where classroom teachers are having difficulty with a particular student. He explained that he is part of a tiered approach to dealing with students: where classroom teachers are unable to resolve an issue or where a student is disrupting the class, teachers can call on Mr. Brown.
10Mr. Brown went to the applicant’s classroom. He spoke to the applicant firmly, although he did not raise his voice. He directed her to bring her bag into the classroom. The applicant was crying. Mr. Brown told the applicant to stop crying and pointed out that no other children were crying. He asked the applicant to leave the classroom and come to his office. She did not do so. Mr. Brown then directed the applicant to sit at her desk and put her head down. The applicant complied. Mr. Brown told her that she could have her snack when she got her bag. He then left the classroom.
11The applicant sat for some time at her desk, sobbing periodically. Eventually, she got up and brought her bag into the classroom. The other students applauded her and the teacher gave her positive verbal reinforcement.
12Some time later, Mr. Brown returned to the classroom to follow up on the incident. He also gave positive verbal feedback to the applicant.
13Throughout the incident, staff repeated to the applicant that the requirement to bring her backpack to the classroom was a rule “that applies to everyone”. They repeatedly stated that she had to do this, “just like everyone else”.
14The applicant alleges that the incident was discriminatory because:
a. The respondent failed to accommodate her by having appropriate services or support for her in the classroom. Had appropriate services been available, the applicant states this incident might have been prevented; and
b. The respondent ought to have tailored its approach to enforcing the rule in light of the applicant’s disability. She does not allege that she was not able to comply with the rule, but she states that she should have been given more latitude and suggests that she should have been treated more gently because of her disability.
The respondent stated that it did tailor the intervention and the enforcement of the rule to the applicant, taking her disability into account. It argues that staff with appropriate skills and training was involved in the intervention, including the applicant’s teacher, an educational assistant who was present in the classroom that afternoon, and Mr. Brown, a special education specialist.
PRELIMINARY MATTERS
Recording
15At the hearing, the applicant sought to introduce as evidence a recording of the February 7, 2005 incident. The recording was obtained because L.P., the applicant’s next friend, placed a recording device into the applicant’s clothing. At the time, the respondent and school staff were not aware that their interactions with the applicant where being recorded.
16The parties did not dispute the relevance, accuracy, or authenticity of the recording. However, the respondent objected to it being introduced as evidence because it was obtained without the knowledge or consent of the respondent or of the staff who were recorded. Counsel argues that to admit evidence obtained in this surreptitious manner would bring the administration of justice into disrepute.
17Counsel for the applicant acknowledged that the recording was obtained in an irregular manner. He argued, however, that the recording is the best evidence available and he urged me to admit it on this basis. Counsel argued that the respondent’s consent to the recording can be implied from a letter from L.P. to the respondent, in which L.P. states that she will be recording her own interactions with the respondent. Counsel argued that, in any event, a surreptitious recording is not necessarily inadmissible as evidence, although the manner in which it was obtained can be considered in determining what weight to be given to the evidence. Finally, counsel for the applicant argued that the vulnerability of the applicant and her developmental disability should be factors in my decision.
18The parties agree that in determining the admissibility of audio recordings, the Tribunal ought to consider the following factors:
whether the voice is that of the person or persons alleged to have taken part in the recorded interaction;
whether the recording is accurate; and
how the recording came into existence. See F.(J.) v. C.(V.), [2001] W.D.F.L. 182, 2000 CanLII 21095 (Ont. Sup. Ct.)
Applying these considerations to the particular circumstances of this case, I ruled orally that I would admit the recording
19I do not accept that the respondent had implicitly consented to the applicant recording its staff. Although the respondent could reasonably have expected L.P. to record her own interactions with the respondent, it does not follow from this that the respondent consented implicitly to the applicant also recording her interactions with her teachers and school staff.
20Despite this, in the particular circumstances of this case, I find that it is appropriate to admit the recording notwithstanding the way in which it was obtained. In reaching this conclusion, I am influenced by the fact that the recording’s authenticity and accuracy were not disputed. The parties agreed that the recording was of the persons or person alleged to have taken part in the recorded interaction. I also considered that the applicant has a developmental disability, that would have affected her ability to recall and communicate the details of the February 7, 2005 incident. In the circumstances, it was appropriate to admit the recording as evidence. In my view, the probative value of the recording outweighs any prejudice.
The scope of the Application
21Both parties provided detailed witness lists in advance of the hearing. Some of the parties’ proposed evidence related to the applicant’s placement in a grade one class and what special services were or were not available to her in 2005. At the outset of the hearing, I invited submissions from counsel regarding the relevance of this proposed evidence.
22Counsel for the applicant argued that had appropriate services been in place for the applicant, the February 7, 2005 incident could have been prevented. Counsel for the applicant argued that the proposed evidence would establish a lack of appropriate services.
23Counsel for the respondent argued that the proposed evidence is not relevant to the sole remaining issue before the Tribunal. He submitted that reframing the issue in these terms is an attempt to improperly broaden the scope of the Application. The argument about appropriate service levels, he argues, relates to matters that were substantially determined by the Ontario Human Rights Commission and, therefore, lie outside the Tribunal’s jurisdiction.
24I made an oral decision to limit the evidence on the applicant’s placement and the services that were or were not available to her in February 2005. L.P. answered some questions in this regard and counsel for the applicant made closing submissions that touched on this issue. I declined to hear more fulsome evidence or argument about the presence or absence of appropriate services for the applicant in 2005.
25I do not accept the applicant’s argument that, had services she deemed appropriate been in place on February 7, 2005, the incident could have been prevented. I also reject the contention that, had individuals involved in the matter had better or different training, the incident could have been prevented.
26First, for the reasons that follow, I find that the respondent did not breach the Code. Accordingly, I need not consider whether or not a different level of service or training would have resulted in a different outcome.
27Second, when asked how further services or training could have impacted the outcome on February 7, 2005, counsel for the applicant answered vaguely, stating that had an educational assistant or someone with an appropriate level of training and experience with the applicant been involved, the outcome might have been different. I find that this argument is speculative and has no basis in the evidence that was before the Tribunal. The recording and the evidence of Mr. Brown established that, in fact, an educational assistant was in the classroom with the applicant at the material times on February 7, 2005. Moreover, Mr. Brown has considerable expertise in special education and experience dealing with the applicant. It is not clear to me what additional services the applicant feels would have been appropriate or necessary to prevent the February 7, 2005 incident. In any event, the applicant has not established that the alleged lack of training or services gave rise to any breach of the Code.
ANALYSIS
28The Tribunal does not have a general power to decide whether the respondent treated the applicant fairly or appropriately. The Tribunal’s powers relate only to alleged discrimination and violations of the Code. In other words, while the applicant feels mistreated by the respondent, to establish discrimination, she must also establish that this alleged mistreatment results in a breach of the Code.
29Section 1 of the Code states:
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
30There is no contention that the applicant’s developmental disability interfered with her ability to bring her backpack into the classroom. The applicant does not allege that the rule itself is discriminatory. Rather, the applicant alleges that, because of her disability, she required additional time and latitude in order to comply with this rule. The applicant argues that, in applying the rule to the applicant, the respondent ought to have been mindful of her disability. The applicant suggests that the respondent ought to have treated her more gently and ought not to have reprimanded her in the way it did.
31The applicant contends that she was severely berated by the respondent. Based on the recording of the incident, I find that this is not a fair characterization of what occurred. Staff did not make any derogatory comments to the applicant and their comments and behaviour cannot be characterized as humiliating. They appear to have made comments to the applicant; there is no basis to conclude that the comments were directed at the entire class or that they attracted other students’ attention to the applicant. Staff did not berate, but rather coaxed and provided incentives for the applicant to get her bag. As I have indicated, staff began by coaxing her gently, they were responsive to her questions and the statements she made, and they did not raise their voice. I accept, however, that Mr. Brown spoke to the applicant firmly and that this upset her.
32Mr. Brown testified that he approached the situation with the understanding that the applicant had repeatedly refused to following her teacher’s direction. He described himself as the second tier in the school’s response to such incidents. He testified that he had some knowledge of and experience with the applicant: he had administered educational testing and understood the applicant’s level of functioning as well as the types of intervention that generally worked with her. He testified that although he would have spoken firmly to any student in the circumstances, he modified his approach in the applicant’s case by using language that was appropriate to the applicant’s level of functioning and understanding.
33It appears from the recording that the applicant was given considerable latitude when she did not respond to the direction to get her backpack. I note that no discipline was imposed. Besides being coaxed and being offered incentives to get the bag, the applicant was asked to sit at her desk until she was prepared to comply.
34The applicant has not lead any evidence or, indeed, made any argument to explain how any of those specific responses was discriminatory in light of her developmental disability. When asked what the applicant felt ought to have been done in the circumstances, counsel for the applicant argued that had appropriate services been available (in the form of an educational assistant), the outcome might have been different.
35This may or may not be true, but it does not establish that staff’s interventions were discriminatory. Further, I have already found that an educational assistant was in fact in the classroom at the material time. She went to get Mr. Brown. Moreover, Mr. Brown, who has expertise in special education, certainly had the expertise to intervene in the circumstances.
36The applicant also argued that the respondent failed to follow its internal procedures in its investigation of the February 7th incident.
37The respondent’s witnesses testified that, in response to the applicant’s parents’ complaint to the school board, Mr. Brown and the applicant’s teacher appeared before a staff review board and were required to explain the incident and their response it. The staff review board had the power to discipline staff, up to and including termination. The respondent’s witnesses testified that the staff review board found no wrongdoing and that no discipline was imposed. These witnesses gave evidence that, because the staff review board related to staffing and personnel issues, its conclusions could not properly have been communicated to the applicant.
38Counsel for the applicant questioned Ms. Wilson, in particular, regarding board policies that required the principal of the school to communicate with parents who file a complaint. Ms. Wilson testified that, given the history of difficulties between them, the school board had advised her not to communicate with the applicant regarding this incident. Ms. Wilson testified that she understood that the respondent would be handling all aspects of the complaint, particularly as the applicant had complained directly to the school board.
39The applicant did not dispute that the staff review board had investigated into the allegations of wrongdoing, but she complained that the respondent ought to have communicated the results of its inquiry to her. Counsel for the applicant did not argue that the respondent failed to investigate the applicant’s allegations or that the failure to communicate the results constitutes discrimination. However, he stated that the respondent’s failure to communicate the results of its investigation is part of the broader context that I should consider when determining whether there was discrimination in the circumstances.
40The applicant and her parents clearly feel that the incident should have been handled differently, in a manner less upsetting to the applicant. My task, as I have explained, is not to determine the appropriateness of the respondent’s behaviour. I must determine whether there has been a breach of the Code.
41I find that no such breach occurred. There is no basis to conclude that the respondent failed to take the applicant’s disability into account in requiring her to move her backpack or in the way in which it applied that rule. Similarly, there is no basis to conclude that the respondent’s failure to communicate the results of the staff review board’s proceeding to the applicant’s parents constitutes discrimination in the circumstances.
42For all of these reasons, the Application is dismissed.
Dated at Toronto, this 18th day of October, 2011.
“Signed by”
Michelle Flaherty
Vice-chair```