HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

M.R. by his next friend C.R.

Applicant

-and-

Halton District School Board

Respondent

DECISION

Adjudicator: David Muir

Date: June 29, 2012

Citation: 2012 HRTO 1290

Indexed as: M.R. v. Halton District School Board

APPEARANCES

M.R. by his next friend C.R., Applicant

Self-represented

Halton District School Board, Respondent

Natisah chowdhury, Counsel

INTRODUCTION

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to the provision of goods and services because of disability or perceived disability.

2The applicant’s essential claim is that because he is perceived to be a person with a disability he has been denied the appropriate placement in his local high school. The applicant disagrees with the respondent’s identification of him as a student with a developmental disability and its decision to place him in a self contained special education class. The applicant seeks to be placed in a regular academic class room with such supports as are required to meet his needs.

3The dispute between the parties which has been ongoing for several years was the subject of an application to the Special Education Tribunal (SET) to which this Application was deferred in November 2010. The SET released a series of decisions in 2010 and 2011.

4In 2012 HRTO 477 the Tribunal, at the request of the applicant, reactivated the Application. In the same Decision, the Tribunal directed that there be a preliminary issue hearing to determine whether all or part of the Application should be dismissed pursuant to section 45.1 of the Code because the substance of the Application has been appropriately dealt with by the SET. Section 45.1 of the Code provides that the Tribunal “may dismiss an application in whole or in part in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application”.

5The Tribunal has interpreted section 45.1 as contemplating a two-step analysis. First, was there a prior proceeding that dealt with the issues raised in the Application? If the answer to that question is yes, then the second stage of the analysis is whether or not the substance of the Application has been appropriately dealt with. See Campbell v. Toronto District School Board, 2008 HRTO 62.

6The Decision of the Supreme Court of Canada, in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, 2011 S.C.C. 52, in interpreting language very similar to section 45.1 in British Columbia, has further clarified that the Tribunal has no authority to scrutinize the procedural or substantive correctness of the determination in the other proceeding and confirmed that the section is intended to prevent the re-litigation of issues that have been determined in the other proceeding. The Tribunal, in a number of decisions, has confirmed that the Supreme Court’s analysis of the British Columbia statute is applicable to section 45.1. See: Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297.

7As stated above, the purpose of this hearing, held by telephone conference, was to determine whether all or part of the Application should be dismissed pursuant to section 45.1 because the substance of the Application has been appropriately dealt with by the SET. Both parties participated in the teleconference. The respondent had also provided written submissions prior to the hearing. I have carefully considered the applicant’s lengthy submissions in relation to this matter as well as her oral submissions at the hearing. I have also reviewed the Application, the Response and other materials filed by the parties including the decisions made by the SET which set out in considerable detail the issues that were before it for determination.

8Neither party took the position that the SET process was not a proceeding within the meaning of section 45.1 and the Tribunal has concluded on more than one occasion that it is. See Campbell, supra, for example.

9Neither party took the position that the issues in the two proceedings were substantially different although the SET does appear to deal with issues that might not have been raised in the Application.

ANALYSIS AND FINDINGS

10I find, for the reasons set out below, that the Application should be dismissed pursuant to section 45.1 of the Code.

11The essential nature of the human rights claim in the instant Application is that the applicant has been denied his right to equal treatment in his educational placement based on a perceived disability. The applicant claims that he is not a person with a disability and that the respondent has no evidence that he is. The applicant claims that the placement selected by the respondent is inappropriate based on their perception that he is a person with an intellectual or developmental disability. On the other hand, the applicant seems to agree that he has special needs that require accommodation. Ultimately, what the applicant disputes is the nature of the placement selected by the respondent.

12These are precisely the issues that the applicant took to the SET. As described in paragraph 3 of the first decision of the SET:

The Issue before the Tribunal is to decide on the most appropriate special education identification and placement in M’s best interest.

13In its decision dated February 15, 2011, the SET described the applicant’s position as follows:

The appellants (the applicant’s parents) want the (SET) to order the HDSS to remove M's identification as an exceptional student and to place M in a regular academic program at A. P. H. S., without the support of an EA, but with the provision of behaviour, speech and language and occupational therapy supports.

The appellants want the (SET) to order the HDSS to provide M with a placement in which he can take academic, applied and open credit courses, leading to a Grade 12 graduation diploma.

The appellants also want an assurance from the (SET) that the programming, services and supports provided to M in the placement at A. P. H. S. will guarantee that he can proceed to post-secondary education at the college or university level or at least enter an adult education program, such as the one offered at G A H S.

14In my view, there is no discernable difference between the issue before the SET and the issue raised in this Application. Indeed, the applicant does not claim that the issues in the two proceedings are different, but rather the applicant states that the SET did not do its job properly and therefore a hearing before the Tribunal is required to resolve the dispute.

15The SET held a four day hearing in November 2010. The SET heard from 14 witnesses called by both parties and issued a “bottom line” decision without reasons in December 2010 in the hopes that it would facilitate the applicant’s return to school in January 2011. On February 15, 2011, the SET issued its reasons for the decision. The SET remained seized of the matter for a period of months after its initial decisions in an ongoing effort to assist in getting the applicant back to school. The applicant is now 18 years old and has apparently not attended school for several years.

16In its February 15, 2011 decision, the SET confirmed its prior decision and orders which can be summarized as follows:

a. That the respondent maintain M.R.’s identification as an exceptional student.

b. That the respondent arrange a full psycho-educational assessment for M.R. in order to identify his strengths and needs and to determine the most appropriate ways to meet his academic, behavioural and communication needs.

c. That the respondent arrange an Identification Placement Review Committee (IPRC) meeting as soon as possible after the psycho-educational assessments are available to identify the appropriate placement for the applicant.

d. That the respondent arrange an appropriate interim Self Contained Special Education Class placement for M.R., in consultation with his parents.

17I have no hesitation in concluding that the substance of this Application was before the SET and considered in that proceeding.

18Did the SET appropriately deal with the issues raised by this Application? As noted above, it is not my role to review the substantive or procedural correctness of the decision-making of the SET. There is no basis to conclude that the applicant did not know the case he had to present there and that he had a full and complete opportunity to present it. This is the test articulated by the Supreme Court in Figliola above and on that basis I find that it would not be appropriate to allow the applicant to re-litigate the same issues before this Tribunal.

19The applicant alleges that the SET did not resolve the dispute because the applicant is not in school; that his identification as an exceptional student has been withdrawn; and, that an appropriate placement has not been identified for him. In addition to significantly misstating what the SET has decided, the applicant’s submissions in this regard ignores the central fact standing in the way of a resolution of this dispute – that the applicant will not attend a psycho-educational assessment which the SET determined was in the best interests of M.R. in order to properly identify his exceptionalities and identify the appropriate placement for him. The applicant can not rely on the fact that he will not comply with the orders and directions of the SET to say that it has not dealt with the issues before it.

20A key issue in this dispute is the applicant’s parents’ apparent belief that a determination that a student is exceptional for purposes of accessing special educational services requires a medical diagnosis of some organic or neurological condition. Hence, the applicant’s repeated references to an MRI scan, genetic testing and other diagnostic testing. It is not clear why the applicant holds this view. However, this issue appears to be at the centre of the applicant’s claims in these proceedings. I note that the SET dealt with this issue in the course of their decision- accordingly, to the extent that this claim might be advanced in a Tribunal proceeding it has been dealt with by the SET as well.

21As indicated above, the SET held a four day hearing where the applicant had a full opportunity to make his case including the calling of evidence and making full submissions. The SET deliberated and released a detailed written decision. There is no basis to conclude that the substance of the dispute was not appropriately dealt with in that proceeding and I find that it was.

22For all of these reasons, this Application must be dismissed pursuant to section 45.1 of the Code.