E.P. v. Ottawa Catholic School Board, 2011 HRTO 657

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

E.P. by her litigation guardian, W.F. Applicant

-and-

Ottawa Catholic School Board and A.D. Respondents

DECISION

Adjudicator: Kaye Joachim Date: April 5, 2011 Citation: 2011 HRTO 657 Indexed as: E.P. v. Ottawa Catholic School Board

APPEARANCES

E.P., Applicant W.F., Representative

Ottawa Catholic School Board and A.D., Respondents Paul Marshall, Counsel

INTRODUCTION

1This is an Application filed under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The complaint which underlies the present Application was filed with the Ontario Human Rights Commission on October 9, 2007.

2The applicant is a child. She has been identified with Multiple Exceptionalities: Communication (Learning Disability) and Intellectual (Giftedness). In September 2006 she was in grade 4 at St. Andrew Catholic Elementary School (“St. Andrew”) and she spent one day a week in the Program for Gifted Learners (“PGL”) at St. Emily Catholic Elementary School (“St. Emily”). In September 2007 she began grade 5 at St. Patrick Catholic Elementary School (“St. Patrick”) and spent one day a week in the PGL program. She was represented at the hearing by her mother W.F.

3The applicant alleges that the Ottawa Catholic School Board (the “School Board”) and A.D., a Vice-Principal at St. Andrew discriminated against her. In a prior Interim Decision, 2009 HRTO 1994, I ruled that the scope of the Application was restricted to September 2006 to mid-October 2007 - the time frame set out in the original complaint filed with the Ontario Human Rights Commission. The applicant alleges that the School Board failed to appropriately accommodate her special needs in grade 4 and the early part of grade 5, contrary to section 1 of the Code. She also asserted that A.D. initiated an inappropriate relationship with her amounts to a sexual solicitation contrary to section 7 of the Code. The applicant also alleges that A.D. threatened to withdraw required accommodations in September 2007 and created a poisoned environment at St. Patrick in September and October 2007.

Statutory Scheme for Special Education

4The following comments are taken from the decision in Schafer v. Toronto District School Board, 2010 HRTO 403. The statutory scheme for special education begins with the definition of “exceptional pupil” in the Education Act, R.S.O. 1990, c.E.2, as amended, as one whose:

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

5The Education Act establishes an obligation on the Minister to ensure that all exceptional children in Ontario have available to them, “appropriate special education programs and special education services”. [s.8(3)]. The Minister’s responsibility is to provide the regulatory framework within which school boards provide those programs and services.

6Regulations under the Education Act flesh out the obligations of school boards in the provision of special education programs and services and establish the process for the identification and placement of exceptional students, including the process by which parents may appeal a decision of an Identification Placement and Review Committee (“IPRC”) [O.Reg. 181/98 (Identification and Placement of Exceptional Pupils); Reg.306 (Special Education Programs and Services)]. The appeal process culminates in an appeal to the SET, a specialized tribunal established under the Education Act.

7Thus, the Education Act recognizes that students with disabilities and gifted students will not receive equal educational services without some modifications (accommodations) to their needs. The system for the identification and placement of students with disabilities and gifted children is the legislative choice for accommodating students with special needs in the school system:

8I find that the statutory scheme for special education has as its central purpose the accommodation of children with special needs, including those with disabilities, so that they are able to receive the benefits of education available to others. See Eaton v. Brant County Board of Education, 1997 CanLII 366 (SCC), [1997] 1 S.C.R. 241 at para. 68. With respect to the provision of education services to children with disabilities, therefore, it has the same goal as the Code. In the words of the Tribunal, “special education is all about finding the appropriate accommodation for students with disabilities.” Campbell v. Toronto District School Board, 2008 HRTO 62 para. 42.

9In this context, where a student with special needs has been assessed and offered accommodations purportedly in accordance with the statutory scheme for special education, what is the role of the Tribunal?

10In special education cases, it is often the case 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.

11However, 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.

12Similarly, 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?

Chronology

13While the period in dispute for the purpose of this Application is from September 2006 to October 2007, it was necessary to hear some evidence of what transpired before and after that year in order to put that year in context. There are numerous areas of dispute between the parties. It is not necessary to resolve most of them. What follows are my findings of fact. Except where indicated, I did not find it necessary to identify or resolve conflicting testimony.

14In 2002, the applicant was diagnosed with a mild conductive hearing loss and a 2005 audiology report confirmed that she also experienced tinnitus. On the basis of the recommendation from the audiologist, St. Andrews purchased a personal FM system with headphones which was used in grade 4.

15In May 2004 the applicant was diagnosed with a Central Auditory Processing Disorder (CAPD), which resulted in difficulties in selective attention, auditory closure and short-term auditory memory. Upon the recommendation of the applicant’s speech pathologist, a word prediction software program, Word Q, was installed in the computer lab. The software program was intended to assist the applicant with her spelling difficulty and increase written output. This software program was available in the computer lab when the applicant was in grade 4.

16In January 2006 a psycho-educational assessment conducted by a private psychologist chosen by the applicant’s family indicated that the applicant had a learning disability but also that she had scored in the gifted range in one area. The Board’s criteria for identifying a student as gifted required a score in the 96th percentile in the area of verbal comprehension and a score of 93rd percentile in perceptual reasons. The applicant had met the percentile score in the perceptual reasoning, but not in the area of verbal comprehension. The Board criteria recognized that the verbal comprehension score may have been affected by the applicant’s learning disability and, in accordance with Board criteria and the recommendation of the School Board psychologist the Board excluded the verbal comprehension score and supported that the applicant be identified as gifted.

17The applicant’s mother sought to have her daughter formally identified as Gifted through an IPRC. An IPRC was held on June 13, 2006 and the applicant was identified with multiple exceptionalities: Learning Disabled and Gifted. The IPRC recommended a placement of Regular Classroom with Withdrawal Assistance. The Withdrawal Assistance contemplated at the time of the June 2006 was the withdrawal of the applicant from the regular classroom at St. Andrew to spend one day a week at the Program for Gifted Learners at St. Emily. The Gifted Profile Form indicated a notation of “trial year.” The significance of the “trial year” notation will be discussed further below.

18The applicant began grade 4 at St. Andrew in September 2006, and was withdrawn one day a week and bussed to St. Emily for gifted programming.

19The Principal of the School at that time, Brian Kelly had just been assigned to the school. He agreed in consultation with A.D. the Vice-Principal that A.D. would take responsibility for the accommodation of the applicant’s special needs, as she was more familiar with the applicant’s situation.

20There is no dispute that this was an unusual situation. In the usual course, the resource teacher takes responsibility for ensuring that a student’s special needs are met. However, due to certain tensions between the applicant’s mother and the school staff arising from earlier disputes between the parties regarding the adequacy of the school’s accommodation in grade 3 and earlier (tensions which are not within the scope of this application), A.D. agreed to intervene and act as a buffer between the applicant’s mother and the school staff.

21A.D. and W.F. initially developed a positive relationship regarding the applicant’s needs for accommodation. A.D. and W.F. consulted in the development of an Individual Education Plan (“IEP”) for the applicant.

22The IEP identified that the following accommodations were to be implemented by the classroom teachers in Grade 4; they were largely unchanged for Grade 5:

Instructional Accommodations

Multi-sensory teaching/images, concrete materials, demonstrations

Use templates or software to organize written work

Chunk assignments

Pre-teach or review new or necessary vocabulary

Provide a photocopy of teacher-made or pupil-made notes

Provide extra time to complete classroom assignments

Allow alternatives to written assignments

Repeat important information

Give clear, concise and short instructions both visually and verbally, check for understanding

Slow rate of presentation

Probe comprehension frequently

Establish a private cueing system to remind child to attend

Access to Alpha Smart for written assignments

Consistent use of agenda as communication tool

Provide outlines of assignments

Environmental Accommodations

Provide a highly structured environment

Provide time to organize materials

Establish a quiet study area for child to use as needed

Sit in front of teacher

Provide choice of participating in loud, busy events

Use of pencil grip for writing activities

Reduce background noise where possible

Prepare student when noisy events will occur (i.e. fire drills)

Schedule periodic auditory breaks

Use of an FM amplification system

Assessment Accommodations

Provide review sheets or study guides

Check for comprehension of test instructions

Allow adequate response time, oral or written

Use short answer, true or false, matching, multiple choice tests

Give extended time to complete tests

Provide prompts or cues

Provide periodic supervised breaks

Spelling exempt

Allow student access to Alpha Smart for written assignments

Frequent assessment of understanding and learning prior to summative evaluations

Negotiate written assignments, increasing time for completion

23W.F. was in agreement with the above. However, she wanted further items included in the IEP, such a mechanism to monitor that the classroom teachers were implementing all the accommodations and a commitment from A.D. that she would take action (i.e. disciplinary action) against staff if they did not do so. A.D. did not agree to include these items in the IEP. I accept the evidence of Michelle Moore, a school board special education consultant, that the inclusion of such items is not appropriate in an IEP. It would be highly inappropriate and probably unenforceable to agree to impose discipline in advance.

24Although the above requests were not included in the IEP, A.D. did agree that she would monitor whether the teachers were complying with the accommodations required in the IEP and act as a go between if necessary between the parent and the teachers.

25I also accept Ms. Moore’s evidence that the IEP listed alternative methods of accommodation and it was not necessary to implement all of them every day. I conclude that the above accommodations were appropriate for the applicant. The issue, discussed below, is whether they were consistently and effectively implemented.

26W.F. continued to have concerns about the adequacy of the programming, especially gifted programming offered to her daughter. A.D. and W.F. agreed that A.D. would provide one-on-one assistance to the applicant with respect to language arts at a gifted level. Accordingly, A.D. began removing the applicant from the classroom on a regular basis from late October/early November 2006.

27W.F. was very supportive of A.D.’s withdrawal assistance and A.D. was very enthusiastic about her role vis-a-vis the applicant. This is confirmed by numerous emails between A.D. and W.F. throughout the school year 2006/07. These emails also contain what appear to be assurances by A.D. to the effect that she was committed to remaining the applicant’s personal resource teacher until she reached high school age, even if A.D. were to move schools.

28It is not my role to comment on the appropriateness of the emails exchanged between W.F. and A.D. It appears to me to be highly unusual for a Vice-Principal to make a commitment to serve as a resource assistant to a child for up to four years, and to offer to take that child with her should she move schools. Except where required in this Decision, I do not intend to comment further on how this situation arose or why it continued.

29To continue, A.D. was promoted to the position of Principal at some point during the school year. In May 2007 it was confirmed that she would be offered the Principal position at St. Patrick school. A.D. and W.F. exchanged emails confirming their mutual understanding that A.D. would continue to provide resource assistance to the applicant despite her change of schools.

30An IPRC was held on May 15, 2007, chaired by Brian Kelly, principal of St. Andrew. A.D. and W.F. were in attendance. At this IPRC, the applicant’s placement for September 2007 (grade 5) was confirmed as Regular Classroom with Withdrawal Assistance at St. Andrew. In addition, the withdrawal assistance listed on the IPRC was identified as being performed by A.D. at St. Patrick. It is not in dispute that it was highly unusual to include the name of the person to perform withdrawal assistance and to conduct the withdrawal assistance (other than PGL) at another school. Nonetheless, A.D. and W.F. both intended in good faith to comply with this plan at that time.

31From this point, the evidence of A.D. and W.F. differs widely. A.D. and the School Board allege that A.D. realized in June 2007 that the duties of a principal were not compatible with her promised support for the applicant and advised W.F. that she would not be able to deliver the withdrawal assistance. Rather, the withdrawal assistance would have to be provided by either the incoming VP or the resource teacher at St. Andrew.

32The respondents argued that W.F. was unwilling to take no for an answer. They allege that W.F. continued to insist to A.D. that she must abide by her agreement, as set out in the IPRC document of May 15, 2007. When W.F. realized that A.D. would not agree, she decided to transfer her daughter to St. Patrick for grade 5, where she hoped to convince A.D. to continue to provide resource assistance to the applicant.

33W.F.’s version is quite different. From her perspective, A.D. did begin expressing concerns about her ability to juggle both the principal duties and the assistance to the applicant, but she never communicated plainly that she would not do it. This left W.F. in a state of uncertainty. She understood that the School Board rules would not permit the agreement incorporated in the May 2007 IPRC to withdraw the applicant from St. Andrew to obtain assistance at St. Patrick. Accordingly, and with the encouragement of A.D., W.F. transferred her daughter to St. Patrick to facilitate A.D.‘s ability to provide assistance to the applicant.

34In my view, it is not necessary for me to resolve these differing accounts. The existence of an agreement between W.F. and A.D. is irrelevant to the issue before me. The sole issue before me in relation to these facts is whether the applicant was given appropriate accommodation in the early part of grade 5.

Applicant’s Criticisms of the Accommodation Provided by Classroom Teachers

35The applicant asserts that her classroom teachers at St. Andrew (Grade 4) did not implement the accommodations recommended in the Individual Education Plan and that A.D. did not take any steps to address their failings. The failure to accommodate continued at St. Patrick (Grade 5).

36The failure to accommodate included the school’s placement of the applicant in a portable, failure to provide a lower ratio of teacher to pupil in the classroom, failure to provide an educational assistant, failure to provide a student helper to assist the applicant daily as she moved from portable to the school bus, failure to provide an FM system to assist the applicant’s hearing, failure to provide word recognition software as recommended by a speech pathologist, failure to utilize a quiet room for the applicant to rest her ears, the designation of the applicant as “on trial” in the gifted program, failure to provide keyboarding training failure to pre-teach vocabulary, failure to reduce background noise, failure to do frequent assessments on the applicant, failure to exempt the applicant from spelling requirements, failure to provide chair slippers, failure to provide pencil grips, failure to use the Alpha Smart, requiring extensive handwriting, failure to provide a qualified teacher (one qualified in special needs and gifted student training), and failure to provide an adequate gifted program.

37While I did not hear from every teacher who taught the applicant in grades four and five, the teachers I did hear from had all reviewed the applicant’s Ontario Student Record, which contained information about the applicant’s learning needs and gifted profile. They reviewed the IEP from the previous year and prepared to implement the required accommodations. I will discuss their evidence in more detail below.

38The applicant, a child, understandably did not testify. The applicant’s mother was not in the classroom to witness the implementation of the accommodations, and the evidence I heard about the alleged failure was necessarily second hand. W.F.’s evidence was based on discussions with her daughter. It is necessarily less reliable than the direct evidence from the teachers.

39I prefer the direct evidence of the teachers who testified. Their evidence was given in a straightforward manner. While they naturally had the tug of self-interest to defend the quality of their actions, they were not named as personal a respondent, which lessens their self-interest. The applicant’s mother on the other hand was motivated to demonstrate the inadequacy of the School Board’s efforts. I prefer the evidence of the teachers and principals to the evidence of W.F. The reasons for preferring the evidence of A.D. is discussed later in this decision.

Smaller Classroom and Provision of an Educational Assistant

40The applicant was assessed by a private psychologist who recommended that the applicant be placed in a smaller classroom (15 to 20 children) and recommended that she be assigned an education assistant who could probe the applicant’s understanding of material taught in the classroom.

41As Michelle Moore, the special education consultant, testified, she didn’t know of a psychological assessment that didn’t recommend a smaller class size and an educational assistant. Her comment was indicative that the recommendation lacked any recognition of the reality of school board budgets.

42In my view, this recommendation, that a child with a gifted profile and a learning disability, who was consistently meeting the provincial guideline standards, required an education assistant, lacks any recognition of the real world situation of public education. I am satisfied that the applicant’s learning needs did not require a smaller classroom or educational assistant. This is not to say that she, or any child, would not benefit from these recommendations. However, they were not required to permit her to understand the curriculum. I note that the IEP did not identify the necessity for an education assistant.

Unqualified Teachers

43While I did not hear from every teacher who taught the applicant in grades four and five, the teachers I did hear from had all reviewed the applicant’s Ontario Student Record, which contained information about the applicant’s learning needs and gifted profile. They reviewed the IEP from the previous year and planned to implement the required accommodations. I accept that the teachers were informed and able to implement the required accommodations although they may not have had special training in the particular combination of needs demonstrated by the applicant. Their evidence is that they understood and were able to implement the accommodations set out in the IEP.

Portable

44W.F. objected to the applicant being placed in portable for half the day because of the noise from the exhaust fan and the distance from the school. I accept the uncontradicted evidence of Mr. Kelly, principal of St. Andrew, that door screens were installed to reduce the noise caused by exhaust fans in the portable and that this was a reasonable accommodation of the applicant’s needs. The evidence demonstrated that the applicant was able to function in the portable.

45The evidence demonstrated that the applicant was assigned a buddy to accompany her from the school to the portable. Although there may have been days when the buddy was not reliable, this requested accommodation was generally implemented.

FM system and Sound Field Systems

46An FM system was used by the classroom teachers. This involved a headset used by the teacher and pupil to enhance communication. The system was lost towards the end of Grade 4. After extensive efforts to locate it, a replacement set was ordered. In Grade 5, a different system was implemented, with sound enhancing built into the walls of the classroom, so headphones were not required.

Quiet Room/Auditory Breaks/Reduction of Background Noise

47The teachers in Grade 4 testified that the library was available as a quiet room and that the applicant sometimes used it. However, as the accommodation suggested breaks, as needed, and the classrooms were quiet, as she was being withdrawn to a smaller classroom for the gifted program, and as she did work in A.D.’s office, the teachers did not often send the applicant for quiet breaks. The special education resource teacher in grade 5 confirmed that the applicant had access to a quiet room for breaks. A.D.’s evidence was that noise reduction headphones, raised for the first time by W.F. at the hearing, had never been suggested to her.

Pencil Grips and Chair Slipper

48Some of the chairs were attached to the desks and therefore chair slippers to reduce noise were not needed. On other chairs, they were provided. Pencil grips were not provided, as the teachers did not notice this accommodation requirement. I find that nothing turns on this minor omission.

Provision and Use of an Alpha Smart Computer/Use of Word Recognition Software

49The School Board purchased an Alpha Smart Computer, a printer, a laptop computer and Word Q writing software for use by the applicant. The Alpha Smart was the model preferred by W.F., as it was sturdier than a typical laptop computer. At times, the applicant brought the Alpha Smart home with her, but W.F. preferred that it remained at the school. W.F.’s uncontradicted evidence was that her preferred word recognition software was not installed on the Alpha Smart. However, the teachers testified that they had computers in their classrooms which the applicant frequently used, and these computers had spelling software which worked in a manner similar to the word recognition software. W.F. testified that the applicant never used the Alpha Smart. I prefer the evidence of Ms. Hanson (grade 4), A.D. (grade 4) and Mr. McCarthy (grade 5) that the applicant did use either the Alpha Smart on the school computers as required. W.F. submitted school work of the applicant to demonstrate that the work was not done on the computer. However, I am not satisfied that this was the complete school work completed by the applicant that year. Also, the work submitted by A.D. demonstrates extensive use of the computer. The work submitted by W.F. was not of a quality or quantity as necessarily required the use of a computer.

Keyboarding Training

50W.F. testified that the applicant did not receive keyboarding training. However, the evidence demonstrates that she did have training in Grade 3, and the teachers confirmed that the applicant had typing skills beyond her peers.

Frequent Assessments

51Ms. Hanson (Grade 4) testified that she monitored the applicant’s comprehension by asking direct questions and monitoring her work. She provided assessment accommodations by administering verbal assessments instead of written tests. Mr. McCarthy (Grade 5) also testified that he assessed the applicant regularly.

Spelling Exemption

52W.F. pointed to various spelling assignments that corrected the applicant’s spelling to demonstrate that the requirement of being spelling exempt was not being followed. However, I accept the evidence of Ms. Hanson that being spelling exempt meant not being marked down for spelling, not that spelling mistakes were not corrected. Mr. McCarthy also confirmed that the applicant was not marked down for spelling mistakes in Grade 5, apart from perhaps one assignment which may have been marked in error.

Pre-teaching Vocabulary

53Ms. Hanson testified that the applicant had an advanced vocabulary, so pre- teaching English Language Arts vocabulary was not necessary.

Gifted Programming and Withdrawal Assistance

54In Grade 4, the applicant was withdrawn once a week to attend the gifted programming at St. Emily. In Grade 5, she attended gifted programming. In addition, in grade 4, A.D. withdrew the applicant for language arts enhanced instruction. Although W.F. testified that she was not satisfied with the quality of the assistance provided by A.D. I prefer her statement on her human rights complaint that the applicant was appropriately accommodated in the withdrawal program provided by A.D.

55In Grade 5, Ms. McGrath, the special education resource teacher was available and offered to provide withdrawal assistance to the applicant, but this was declined by W.F.

Failure to Teach Math

56The applicant asserts that the grade 4 math teacher Ms. Hanson did not take steps to accommodate the applicant’s learning disability with the result that the applicant did not understand her math classes. As a result, W.F. had to reteach her everything she learned in math on a daily basis. To prove this assertion, W.F. submitted emails between herself and Ms. Hanson, discussing how W.F. could help her daughter. I have reviewed the emails and I do not interpret them as W.F. suggests. Rather, I interpret them as indicative of frequent communication between the teacher and the parent with suggestions of how to augment the applicant’s learning experience. I note as well that this communication was recommended by the applicant’s psychologist:

In view of the substantial role played by [the applicant’s] mother in supporting her learning, it is recommended that [the applicant’s] school work in terms of what she has accomplished that day, along with information about the teacher’s expectations and homework assignments be sent home with [the applicant] on a daily basis. If such a process is initiated then [the applicant’s] mother can most effectively provide her with the necessary assistance and support…

57I recognize that the applicant’s sister testified that she perceived that the mother was re-teaching the applicant every night. The sister’s evidence was vague and she had an obvious interest in supporting her mother and her sister. I give no weight to her evidence.

58I accept Ms. Hanson’s evidence that she communicated regularly with W.F. as requested by the applicant’s mother, but that communication did not amount to requesting W.F. to teach the applicant.

59In Grade 5, Mr. McCarthy testified that the results of the first math test were not good, so he asked the student teacher to provide one-on-one assistance to the applicant.

On Trial in the Gifted Program

60There is no dispute that the original IPRC listed the applicant as being “on trial” in the gifted program and the gifted teacher in Grade 4 had concerns about a child with learning disabilities being in the gifted program. The designation “on trial” was used so that if the child experienced difficulties, she could be removed from the gifted program without another IPRC. However, based on the evidence of Mr. Kelly and Ms. Moore, I find that when W.F. objected to this notation it was removed from the September 2006 IPRC. While I understand W.F.’s concern about the “on trial” designation, it is not a form of discrimination to indicate caution about enrolling a student in the gifted program for a short period of time.

Standardized Testing

61W.F. attempted to rely upon the results of private psycho-educational testing to demonstrate that the applicant was not meeting the provincial guidelines as evidence that the appropriate accommodations were not in place. However, at the same time, she refused to admit evidence of the applicant’s grades, found in the Ontario School Record (“OSR”).

62The OSR is a privileged document and cannot be admitted without the parent’s consent. In an interim ruling, I acceded to W.F.’s request to exclude the report cards from this hearing. As W.F. submitted, the report cards are not necessarily indicative of true achievement. They cannot indicate whether the required accommodations are in place. However, W.F. cannot have it both ways. She cannot both refuse to consent to the provincial report cards and then attempt to rely upon an alternative form of testing as indicative that failure to accommodate resulted in the applicant’s lack of achievement. Test results do not prove or disprove the adequacy of accommodation.

Additional Evidence of Accommodation in Grade 4 and 5

63Ms. Moore, the special education consultant, worked with a school team to create a chart to demonstrate to W.F. how the accommodations in the IEP had been and were being implemented in grades 4 and 5. Ms. Moore visited the classroom in Grade 5 and observed that accommodations were being used. She gave testimony that E.P. was performing quite well in school and the supports in place were meeting her needs. When W.F. confirmed that she was transferring the applicant to St. Patrick, against advice, A.D. sent the accommodation plan she had created to the resource teacher at St. Andrew over the Labour Day weekend so that programming for the applicant could begin immediately. A.D. also met with the applicant’s teachers at St. Patrick on the first day of school.

Conclusions on Accommodations in Grade 4 and Early Grade 5

64I conclude that the teachers generally implemented the accommodations required on a regular basis in Grade 4 and Grade 5. In addition, the applicant had the benefit of withdrawal assistance from A.D. on the regular basis for language arts and later, math, in grade 4. The only reason she was not provided with additional withdrawal assistance in Grade 4 or 5 was because W.F. refused to permit the resource teacher to withdraw the applicant. It is not in dispute that the resource teacher may not withdraw a child from the classroom without the consent of the parent.

Transition to St. Patrick and Threat to Remove Accommodations

65A.D. applied for a principal position and was aware early in November 2007 that she may be successful and move from St. Andrew.

66As stated above, at the IPRC meeting on May 15, 2007 A.D. agreed to continue providing assistance to the applicant at St. Andrew although A.D. was moving to St. Patrick School to take up the position as Principal. However, the School Board intervened on the basis that the agreement was not binding and not workable, as A.D. was the Principal of a school without VP assistance and she would not have time to provide this assistance to a child in another school.

67In June 2007 A.D. sent an email to W.F. to advise that she could not provide the withdrawal assistance she had provided the previous year. A.D. testified that W.F. tried to persuade her to keep to her promise made at the IPRC meeting in May 2007. As a result, the relationship between them deteriorated.

68The applicant sought to move to St. Patrick for grade five, although this school did not have French immersion and was not in her district. The applicant completed a cross boundary transfer application and the applicant was permitted to register at St. Patrick.

69As the relationship between W.F. and A.D. deteriorated, W F. alleges that A.D. pressured her to move the applicant back to St. Andrew. When she refused, A.D. threatened that the applicant would not receive any accommodation at St. Patrick. I reject this evidence. The email evidence confirms that the Principal at St. Andrew continued to offer the applicant a place at St. Andrew for Grade 5, where she would have access to the French curriculum. At the same time, the teachers at St. Patrick were preparing to accept the applicant.

70I conclude that A.D. did not threaten to remove accommodations from the applicant at St. Patrick.

Call to Children’s Aid

71Early in the school year at St. Patrick, the applicant was picked up by taxi for transportation to PGL, but the driver took her to the wrong school. He also got upset and shouted at the applicant and eventually dropped her off near St. Patrick.

72A.D.‘s notes and the other evidence demonstrates that W.F. told staff that the applicant was suicidal as a result of this incident. A.D. decided to call the Children’s Aid Society, although she had doubts whether the statement was true.

73I am not satisfied that the call amounts to a reprisal. Section 72 of the Child and Family Services Act require a teacher to report when there is a risk to a child.

Sexual Solicitation and/or Reprisal

74The applicant submitted that A.D. breached the Code provision regarding solicitation. In her view, A.D. agreed to provide withdrawal services and accommodation so long as W.F. continued to provide advice and support regarding A.D.’s PhD thesis. In August 2007 W.F. testified that A.D. made a pass at her which was rejected. Once W.F. rebuffed A.D. she claims that A.D. changed; her manner became cold to both W.F. and the applicant and she became unwilling to provide ongoing accommodation. Also, at the hearing, she suggested that A.D. behaved inappropriately with the applicant by hugging her and singling her out. She submitted a photograph of the applicant sitting on A.D.’s lap.

75A.D. vehemently denied these assertions.

76A.D. does not deny hugging the applicant or posing for the picture. This is not evidence of sexual solicitation of the applicant. A.D. testified that W.F. offered to and did provide feedback on A.D.’s thesis. However, the assistance was never tied to or connected with the accommodations provided to the applicant. A.D. was mystified by W.F.’s allegation of a sexual advance in August 2007.

77I prefer the evidence of A.D. to W.F. on this point, and on all other points. W.F. demonstrated a tendency during the hearing to bend facts to suit her agenda. She repeatedly asserted that she had produced all emails and all school work. Then she produced more emails and school work. This indicated to me that the W.F. was not being forthright when she stated that she had produced all relevant documents.

78She was advised repeatedly of her obligation to disclose all relevant evidence. Near the close of the hearing she revealed that she had recorded various conversations with school staff and she sought to introduce such tapes. I refused to admit such evidence disclosed so late.

79The applicant’s evidence changed on important points. Significantly, when she filed her complaint in 2007 she stated she was satisfied with A.D.’s withdrawal assistance. At the hearing, she resiled from this statement and stated that she was never satisfied with A.D.’s efforts. She repeated and asserted that A.D. had shredded the applicant’s OSR, which is not the case. I reviewed the OSR for the purpose of an interim ruling. W.F. testified at the hearing that she was only informed in September 2007 that A.D. would not be provided withdrawal assistance to the applicant at St. Patrick. However, the email evidence indicates otherwise.

80I also find that W.F.’s evidence that A.D. was “making passes continually since October [2006]” is inconsistent with the emails exchanged between the two or W.F.’s desire to have A.D. continue to work with her daughter.

81On the other hand, A.D. gave her evidence in a straightforward manner. She acknowledged the unusual nature of her involvement with W.F. and the applicant and candidly admitted that she may have been in error to depart from usual Board practices. Her evidence and the emails exchanged between the parties is consistent with her explanation that she was trying to run interference between the parent and the teachers, while ensuring that the child’s needs were met.

82I conclude that that A.D.’s refusal to provide withdrawal services at St. Patrick was a not reaction to the deterioration of her relationship with W.F. Rather; it was because her duties as Principal did not permit it. I also conclude that the deterioration of the relationship between W.F. and A.D. does not amount to a solicitation within the meaning of the Code.

Poisoned Environment in September 2007

83The applicant alleges that A.D. libelled W.F. in emails to the School Board and school staff, as well as parents at St. Patrick and St. Andrew. W.F. testified that teachers and students at St. Patrick, initially friendly, became rude and hostile. Teachers prevented the applicant from visiting A.D.’s office as she had the previous year. They also refused to permit W.F. to enter the school and refused correspond with the W.F. by email. W.F. also asserts that she was denied the opportunity to volunteer for Mr. McCarthy’s class.

84I have reviewed the emails sent by A.D. to school staff. Although they do indicate some concerns that W.F. was a difficult parent, there was no evidence to corroborate W.F.’s belief that A.D. had made negative comments to any parents at St. Patrick and St. Andrew.

85The evidence of A.D. was that on the first day of school, she noticed the applicant crying and arranged for a student to play with the applicant at recess. At recess A.D. was able to confirm that the applicant was playing with other students.

86The evidence of Kevin McCarthy was that A.D. fostered a very welcoming school environment for the applicant at St. Patrick. The evidence of Ms. Mulvahill, acting Principal at St. Patrick, was that E.P. seemed happy at the school.

87The evidence of the teachers at St. Patrick was that the applicant was not prevented from visiting A.D. in her office.

88The evidence of Mr. McCarthy, Ms. McGrath, Ms. Mulvihill and A.D. confirmed that Board policy requires visitors to sign in and obtain a pass. W.F. was simply being asked to comply with this policy.

89Mr. McCarthy testified that it was not his practice not to exchange emails with parents, as advised by his association. He practised this policy with all parents. Mr. McCarthy testified that he does not use parent volunteers in his classroom.

90I conclude that the applicant did not experience a poisoned environment at St. Patrick.

91The Application is dismissed.