R.B. v. Keewatin-Patricia District School Board, 2012 HRTO 1721

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

R.B by his next friend S.F.

Applicant

-and-

Keewatin-Patricia District School Board

Respondent

INTERIM DECISION

Adjudicator: Brian Eyolfson

Decision Date: September 11, 2012

Citation: 2012 HRTO 1721

Indexed as: R.B. v. Keewatin-Patricia District School Board

APPEARANCES

R.B. by his next friend S.F., Applicant

Meryl Zisman Gary, Counsel

Keewatin-Patricia District School Board, Respondent

Derek T. Noyes, 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 services because of disability and reprisal. A Request to Expedite and a Request for Interim Remedy were filed with the Application.

2In an earlier Interim Decision dated August 15, 2012, 2012 HRTO 1580, the Tribunal addressed a contested request for an extension of time made by the respondent to respond to the applicant’s Requests. The Tribunal granted the respondent an extension until August 22, 2012 to respond to the Requests.

3Following receipt of the respondent’s Responses to the Requests, the Tribunal held a telephone conference with the parties on August 29, 2012, to obtain further submissions from the parties on the applicant’s Requests.

4This Interim Decision addresses the applicant’s Request to Expedite and Request for Interim Remedy.

THE APPLICATION

5As set out in the Tribunal’s earlier Interim Decision, the Application relates to the provision of educational services to the applicant, an eight-year-old entering grade three in September 2012, who has various disabilities. Among the allegations in the Application are that the respondent has failed to provide the support of an educational assistant (an “EA”), and has treated the applicant differentially, including forcing him to eat lunch alone and sit alone away from his class. The Application alleges that since December 2011, the respondent has refused to communicate with the applicant’s next friend and sole custodial parent, except through a superintendent, barring her from direct communication with the school her son attends. A trespass notice was also issued preventing her from attending at the school. The Application alleges that this is a reprisal. The applicant alleges that, as a result of the “communication ban”, last year the school failed to contact the applicant’s next friend and sole custodial parent about a urinary accident the applicant had at school.

THE REQUESTS

6The Interim Remedies requested are: (1) that the applicant receive the assistance of a full-time EA in his classroom for the 2012-13 school year; and (2) that the respondent immediately contact the applicant’s mother and next friend in cases of emergency (including a urinary or fecal accident), whether or not the current trespass notice and communication ban remain in place.

7In the Request to Expedite, the applicant seeks an abridgment of the Tribunal’s timelines and a hearing on the merits of the Application in December 2012 or January 2013.

8The respondent opposes the applicant’s Requests. In its Responses to the Requests dated August 22, 2012, the respondent submits, in part, that the Application is premature. In particular, the respondent submits that, as a result of medical evidence recently received by the respondent, it will be scheduling a new Identification, Placement and Review Committee (“IPRC”) in the first week, or weeks, of September 2012. The respondent submits that the decision of the IPRC may render the Application moot.

9On August 23, 2012, the applicant provided the Tribunal with a copy of an email from a Vice Principal with the respondent, dated August 22, 2012, and addressed to the applicant’s next friend. The email states that the applicant “will benefit from full time EA support in his classroom this school year because of his increasing behaviour as well as his anxiety around attending school.” The email also advises the applicant’s next friend that she will be notified of the date and time of an imminent IPRC to review the applicant’s needs, how they may have changed, and what supports need to be considered. The applicant is also invited to his school for a brief informal visit on August 27, 2012 to meet his new teacher, find his classroom and look around the school. The email also states that the “communication order” will be temporarily lifted for the purpose of the visit.

10In correspondence to the Tribunal, dated August 24, 2012, and copied to the applicant, the respondent clarifies that the applicant will have a full-time EA in his classroom at the beginning of the school year, but only until an IPRC can be established and its recommendation regarding the placement of the applicant are provided.

INTERIM REMEDY

11The conditions for awarding an interim remedy are set out in Rule 23.2 of the Tribunal’s Rules of Procedure:

The Tribunal may grant an interim remedy where it is satisfied that:

a) the Application appears to have merit;

b) the balance of harm or convenience favours granting the interim remedy requested; and,

c) it is just and appropriate in the circumstances to do so.

12In TA v. 60 Montclair, 2009 HRTO 369, the Tribunal stated that, since the Code is remedial legislation, the fundamental consideration in determining whether to award an interim remedy is “whether an interim remedy is necessary to facilitate and ensure the Tribunal is able to award a complete, appropriate and effective remedy at the end of a hearing, should a violation of the Code be found.”

13Normally, the Tribunal’s power to order respondents to do, or refrain from doing something, is contingent upon a finding that they have violated the Code. Interim remedies are extraordinary in that they constitute an order to do, or refrain from doing something, in the absence of a finding that the Code has been violated. For this reason, an applicant bears a significant onus in establishing that the Tribunal should award an interim remedy: TA, supra, at para. 29.

14With respect to the first criterion in Rule 23.2, the allegations in the Application include that the respondent failed to provide the applicant with the needed accommodation of a full-time EA in his classroom. The Application alleges that in a letter to the respondent in February 2009, the applicant’s pediatrician recommended the provision of an EA for the applicant. A July 2009 psychological assessment, provided to the respondent, also noted that the applicant required substantial learning assistance in the classroom in the form of an EA. It appears that in the 2009/2010 and 2010/2011 school years, a full-time shared EA was present in the applicant’s classroom.

15The Application alleges that a second psychological assessment in March 2011, provided to the respondent in June 2011, again recommended that the applicant required substantial learning assistance in the classroom in the form of an EA. The psychologist’s recommendations were also noted by the applicant’s general practitioner in a letter to the respondent in July 2011. The Application alleges that on June 23, 2011, the respondent indicated that the applicant’s accommodation in the form of an EA would be cut in half. The applicant’s pediatrician wrote to the respondent on September 20, 2011, indicating among other things that the applicant would greatly benefit from a continuation of the previous level of support he received in the form of a full-time, shared EA. It appears that in the 2011/2012 school year, the applicant was provided with EA support for approximately half of class time. The Application alleges that the applicant’s anxiety became so severe that his general practitioner determined that he was medically unable to attend school as of May 14, 2012.

16The above allegations are also set out in a declaration signed by the applicant’s next friend. Attached to the declaration are copies of the various letters and assessments of the applicant’s medical practitioners referred to above. The applicant also provided a letter dated July 31, 2012, signed by the applicant’s psychologist and psychometrist, stating their opinion that a full-time shared EA would most benefit the applicant. The applicant also provided a letter dated August 16, 2012, signed by the applicant’s pediatrician, stating that in the 2011/2012 school year the provision of appropriate EA service, which is the single most important area of accommodation to keep the applicant in a classroom with his age-congruent peers, was deficient.

17In her declaration, the applicant’s next friend also confirms her belief, as alleged in the Application, that a trespass notice and communication ban were initially imposed, and remain in effect, as a reprisal for having asserted the applicant’s right to accommodation. She also states that the respondent has been advised that she is the applicant’s sole custodial parent, but did not communicate with her regarding the applicant’s Individual Education Plan (“IEP”) for the 2011/2012 school year. She also believes that the respondent’s failure to consult her on this recent IEP is a reprisal for having asserted the applicant’s right to accommodation, and has a discriminatory impact on the applicant.

18The respondent submits that the applicant has been, and continues to be, provided the necessary accommodations to allow him to access education to the best of his abilities, and as recommended by his most recent IPRC, and as established in his IEP. The respondent submits that the Tribunal has been clear that it will not second guess the findings of an IPRC, or the accommodations listed in the IEP, referring to the Tribunal’s decision in Schafer v. Toronto District School Board, 2010 HRTO 403, at para. 71, wherein the Tribunal stated as follows:

The Human Rights Tribunal is not an alternative or substitute body to monitor and regulate the special education scheme under the Education Act. Generally the Tribunal will not second guess the IPRC placement and recommended accommodations and will not supervise a school’s implementation of an IEP. In order to establish discrimination under the Code, the evidence must demonstrate that the accommodations provided were significantly inappropriate or inadequate.

19With respect to the first condition in Rule 23.2, generally, the Tribunal need only be satisfied, after considering the materials filed by the parties, that there is an arguable case and the claim is not frivolous or vexatious. See TA, at para. 32. Having carefully reviewed the Application and the parties’ materials, and considered their submissions, I am satisfied that the Application appears to have merit.

Request for a Full-time Educational Assistant

20With respect to the request that the applicant be provided with a full-time EA in his classroom, while the Application appears to have merit, I am not satisfied that the balance of harm or convenience favours granting this aspect of the Request for Interim Remedy at this point in time.

21In its August 24, 2012 correspondence to the Tribunal, the respondent clarified that the applicant would have a full-time EA in his classroom at the beginning of the school year, but only until an IPRC could be established and its recommendations regarding the placement of the applicant are provided.

22Subsequently, on the telephone conference call, the parties confirmed that the applicant commenced the 2012/2013 school year with a full-time EA in his classroom. The respondent also indicated that a date for an IPRC had not yet been set, but it would be within the first couple of weeks of September 2012.

23In its Response to the Request for Interim Remedy, the respondent submits that the determination of the level of support to be provided to a student is properly determined by the student’s IEP, based on the recommendations of the IPRC. On the conference call, the respondent also explained that the IPRC does not determine the assignment of support, but following the IPRC, an IEP would be developed.

24In my view, it would not be appropriate to grant this aspect of the applicant’s Request for Interim Remedy, at this point in time, in light of an imminent IPRC that may result in different identification and/or placement determinations concerning the applicant, and include additional recommendations. In the meantime, as the applicant is being provided with full-time EA in the context of his current placement, there is no need at present to grant this aspect of the applicant’s Request, and there is no apparent harm that will result from not granting this aspect of the applicant’s Request at this point in time.

25The decision to not grant this aspect of the applicant’s Request for Interim Remedy at this point in time is without prejudice to the applicant’s ability to renew this request, or file a new Request for Interim Remedy, should circumstances change.

Communication with the applicant’s next friend in cases of emergency

26In addressing the balance of harm or convenience with respect to the request that the applicant’s next friend be immediately contacted by the respondent in cases of emergency, including when the applicant has a urinary or fecal accident, the applicant submits that this is necessary for health reasons. The applicant also submits that, since the incident that led to the trespass notice being issued, the applicant’s next friend has been communicating with a Superintendent, and no concerns have been raised about her communication, nor is there any reasonable basis for such concerns. In addressing whether it would be just and appropriate to grant this request, the applicant submits that there is no basis for refusing to contact the applicant’s next friend in cases of emergency, including when the applicant has a urinary or fecal accident, and it is inappropriate and potentially very harmful to the applicant’s health for the respondent to refuse to do so.

27In its Response to the Request for Interim Remedy, the respondent submits that the balance of convenience does not favour lifting the trespass notice or communication restriction. The respondent submits that the trespass notice was issued after the applicant’s parents became belligerent and threatening toward the Principal and refused to leave the premises without the intervention of the police and the respondent’s Superintendent.

28The applicant’s next friend states in her declaration that she is the sole custodial parent of the applicant, that the respondent has an obligation to communicate with her where necessary for the applicant’s health, and that it has failed to do so, resulting in harm to the applicant. She states that, on one occasion in December 2011, the applicant was required to remain at school sick because the school could not reach the applicant’s father, and no attempt was made to contact her.

29On another occasion in mid-February 2012, the applicant had a urinary accident. The school called the applicant’s father, and the applicant’s next friend was not contacted by the Board. After receiving a message from the applicant’s father, the applicant’s next friend called her “in-laws” to go to the school to pick up the applicant.

30The applicant’s next friend also states that, on April 12, 2012, the applicant had a urinary accident after lunch, she was not contacted, and the applicant was forced to remain in soiled pants for the remainder of the day. The applicant’s next friend states that direct communication is essential for the applicant’s health, and the failure to contact her even in emergency situations has the potential to cause serious health and safety problems for the applicant.

31In a declaration signed by a Superintendent of the respondent, the Superintendent states that the applicant’s next friend’s statement that the applicant was made to sit in soiled pants for the remainder of the day, having wet them at lunch, is patently false. She submits that it is true that the applicant’s next friend was not contacted, due to the terms of the trespass notice that the applicant’s next friend is not to attend the school unless there is an emergency that requires her attendance. Instead, the school contacted the applicant’s next friend’s father-in-law to pick up the applicant, and he collected the applicant as soon as he was able to.

32While the respondent submits that the balance of convenience does not favour lifting the trespass notice or communication restriction, it appears that the applicant is only seeking an interim remedy that the applicant’s next friend be contacted by the respondent in cases of emergency, including a urinary or fecal accident, whether or not the current trespass notice and communication ban remain in place. In addition, as I understand the respondent’s submissions from the conference call, the applicant’s next friend is to be contacted in cases of emergency; however, the issue for the respondent is whether a urinary accident or illness can be properly addressed by family members other than the applicant’s next friend, and the respondent may not necessarily consider an urinary accident to be an “emergency”.

33I note that the trespass notice and communication ban issued by the respondent state that the applicant’s next friend will be contacted by the school in the event of an emergency, and that if her presence is required at the school and she is advised of this, she will report directly to the school office.

34I also note that the incident that led to the respondent contacting the police, and the subsequent issuance of the trespass notice and communication ban, as described by the Superintendent in her declaration, attributes threatening behaviour and comments that precipitated contacting the police to the applicant’s next friend’s husband, rather than the applicant’s next friend. It appears that, since the trespass notice and communication ban were issued, the applicant’s next friend has communicated with the respondent through its Superintendent, and it appears that no further concerns regarding communication have been raised by the respondent.

35Lastly, I note that the respondent was willing to temporarily lift the communication ban in order for the applicant to visit his school on August 27, 2012 with his next friend.

36In all of the circumstances, I am satisfied that the balance of harm and convenience favours granting this aspect of the applicant’s Request for Interim Remedy. The applicant’s next friend is his mother and sole custodial parent. In my view, it is also just and appropriate that she be contacted should the applicant experience any emergency at school, including any urinary or fecal accident.

37As the Application appears to have merit, all three conditions for awarding this aspect of the applicant’s Request for an Interim Remedy, as set out in Rule 23.2 of the Tribunal’s Rules, have been satisfied. The Tribunal orders that, in cases of emergency (including when the applicant has a urinary or fecal accident), the applicant’s next friend be promptly contacted by the respondent.

REQUEST TO EXPEDITE

38Rule 21.1 of the Tribunal’s Rules provides that an applicant may request that the Tribunal deal with an application on an expedited basis in circumstances that require an urgent resolution of the issues in dispute. Rule 21.2 requires an applicant seeking an expedited application to identify any urgent circumstances that may affect the fair and just resolution of the merits of the application, and the harm that would result if the request is denied.

39In Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53 at para. 9, the Tribunal held that, for a request to expedite to be granted, the applicant must demonstrate that the circumstances are truly urgent, requiring the resolution of the human rights dispute in a particularly rapid manner as compared with the time required to complete the Tribunal’s regular process.

40The Application alleges that, as a result of a lack of accommodation and negative treatment at school, the applicant’s next friend and the professionals involved in the applicant’s care observed an increase in his anxiety and a decrease in his self-esteem over the course of the 2011/2012 school year. The Application also alleges that the applicant exhibited physical symptoms of distress, and that his anxiety became so severe that his general practitioner determined that he was medically unable to attend school as of May 14, 2012, to the end of the school year.

41Attached to the applicant’s next friend’s declaration is a letter dated May 14, 2012, signed by the applicant’s general practitioner, confirming that the applicant was unable to attend school due to medical reasons. Also attached to the declaration are notes of the applicant’s general practitioner, dated May 14, 2012. The notes state that the applicant’s next friend reports severe difficulties communicating with the school regarding the applicant’s progress and needs. The notes indicate that the applicant “does complain about being teased and bullied at school and has come home with scratches on his face.” The notes also indicate that the applicant “is also now developing more anxiety re: attending school.” In her notes, the applicant’s general practitioner also states that she knows that the applicant’s pediatrician was reluctant to have the applicant withdrawn from the classroom in the past, but she feels that “he is a pawn in a growing battle between his family and the school board.”

42In their July 31, 2012 letter, the applicant’s psychologist and psychometrist state that, since beginning psychotherapy, the applicant’s anxiety consistently escalated prior to withdrawing from school for medical reasons. They state that, in their sessions, the applicant talked about his dislike of being segregated and made to feel different at school, and discussed, among other things, feeling sad that his desk was located in a separate area, away from his classmates. They also state that the applicant described a constant fear of going to school.

43While the parties have confirmed that the applicant commenced school in September 2012 with a full-time EA present in his classroom, it is by no means clear if this arrangement will continue. I also note that, in the Application, the applicant seeks accommodation remedies well beyond the provision of a full-time EA, and remedies concerning communications between the respondent and the applicant’s next friend, well beyond the respondent contacting the applicant’s next friend in cases of emergency.

44In my view, the medical evidence provided supports the applicant’s submissions that this is a critical time period in the applicant’s education and development, and that the applicant could suffer profound harm if he is denied accommodation that he requires to receive the full benefit of education. I agree with the applicant’s submission that, if it is found that discrimination has occurred and continues to occur, it is vital that a remedy be put in place as quickly as possible.

45Having regard to all of the circumstances, including the applicant’s medical condition that led to him being withdrawn from school in May 2012, and the trespass notice and communication ban that remains in place against the applicant’s sole custodial parent, the Tribunal grants the Request to Expedite. I am satisfied that truly urgent circumstances exist that may affect the fair and just resolution of the merits of the Application if the Application does not proceed on an expedited basis.

46The Tribunal notes that while the respondent has indicated an interest in mediation, it appears that the applicant has not. In the circumstances, the applicant is directed to advise the Tribunal and the respondent whether or not the applicant is interested in attending mediation, within seven days of the date of this Interim Decision. If both parties are interested in attending mediation at the Tribunal, the Tribunal will attempt to schedule mediation on an expedited basis.

ORDER

47The Request for Interim Remedy is granted in part. The Tribunal orders that, in cases of emergency (including when the applicant has a urinary or fecal accident), the applicant’s next friend be promptly contacted by the respondent.

48The Request to Expedite is granted on the following basis:

1. The applicant will advise the Tribunal and respondent whether or not the applicant is interested in attending mediation, within seven days of the date of this Interim Decision. If both parties are interested in attending mediation at the Tribunal, the Tribunal will attempt to schedule mediation on an expedited basis.

2. The Tribunal will schedule this matter to be heard on dates commencing in December 2012 and/or January 2013.

3. The parties will comply with their disclosure obligations pursuant to Rule 16.1 of the Tribunal’s Rules by no later than 45 days prior to the first scheduled hearing date.

4. The parties will comply with their disclosure obligations pursuant to Rules 16.2, 16.3, 17.1 and 17.2 of the Tribunal’s Rules by no later than 20 days prior to the first scheduled hearing date.

49I am not seized.