C.M. v. Toronto District School Board, 2012 HRTO 1853

C.M. by his next friend B.M.

Applicant

-and-

Toronto District School Board

Respondent

Adjudicator: Dale Hewat

Date: September 28, 2012

Citation: 2012 HRTO 1853

Indexed As: C.M. vs. Toronto District School Board

AppearanceS

C.M. by his next friend B.M., Applicant ) Glen Morrison, Representative

Toronto District School Board, Respondent ) Glorie Alfred, Counsel

1This Decision pertains to three Applications filed in 2008 under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), as well as a fourth Application filed under s. 34 of the Code. These Applications were filed by the applicant’s mother B.M. as his next friend. The applicant is a minor who identifies as a Canadian Black male. He has been diagnosed with Attention Deficit Disorder (“ADD”) and Oppositional Defiance Disorder (“ODD”) and has special learning needs that were identified in a psychological assessment of the applicant that occurred in 2009, after the filing of the last Application. The respondent is the Toronto District School Board (the “TDSB”, the “Board”, or the “School Board”).

2The allegations raised in these four Applications relate to events that occurred at the following schools operated by the School Board: Westway Junior Middle School (“Westway”), Hilltop Middle School (‘Hilltop”), John G. Althouse Middle School (“Althouse”) and Elmbank Junior Middle Academy (“Elmbank”). Specifically the allegations relate to numerous suspensions and allegations of differential treatment and harassment towards the applicant because of race, colour and place of origin and disability contrary to sections 5 and 9 of the Code and in the Application involving Althouse, reference is also made to a violation of section 17 of the Code. The applicant alleges that the suspensions issued between grades 5 and 8 at the four different schools noted in the Applications represented deliberate punishment for behaviours either over which he had no control or that he did not do, and therefore, the suspensions constituted harassment and failure to accommodate his disability. He also alleges that the actions of administrators and teachers at Elmbank were done as a direct reprisal for filing previous human rights complaints.

3The respondent asks that all of the Applications be dismissed in their entirety on the basis that the evidence does not establish a prima facie case of discrimination under the Code. Alternatively, the respondent submits that it has provided a credible, rational and non-discriminatory explanation for each of the suspensions of the applicant.

4The hearing of these Applications took place over a number of days between September 2010 and June 2011, following which extensive written submissions were submitted. In this Decision, the chronology of events summarizing the evidence will be divided by school. Both the applicant and his mother testified. I also heard testimony from the following witnesses on behalf of the respondent: Lisa Beischlag, Stephanie Fetterolf, Janet McBeth Mutter, Greg Freeman, Jennifer Newby, Yashar Nazarian, Aldona Volunge, Luke Persaud, Pernel Woolcock, Glen Edwards, Clinton Russell and Dr. Peter Mallouh.

Summary of Allegations

Westway

5The applicant attended Westway in grade 5 between September 2006 and June 2007. Lisa Beischlag (“Ms. Beischlag”) was the Principal at that time. In the Application it was alleged that the applicant was discriminated against on the basis of race and disability. The Application states that the applicant was punished for expressing his feelings to his teacher regarding information about contacting the applicant’s father. It was also alleged that the applicant was treated unfairly and interrogated by the Principal with respect to allegations about him stealing snacks, and for receiving a one-day suspension on February 6, 2007, related to taking snacks, which he denied doing.

Hilltop

6The applicant attended Hilltop between September 2007 and December 18, 2007, for the first term of Grade 6. During his enrolment, Janet McBeth Mutter (“Ms. McBeth Mutter”) and Stephanie Fetterolf (‘Ms. Fetterolf”) held the positions of Principal and Vice-Principal. The applicant left Hilltop at the end of December 2007 and moved to Althouse on January 31, 2008, after his mother made a request to have him transferred. The Application involving Hilltop states that the applicant was discriminated against and harassed on the basis of race, color, ethnic origin and disability.

7The allegations raised in the Hilltop Application pertain to a number of incidents and suspensions that occurred between October 2007 and the end of December 2007 which the applicant claims constituted a pattern of suspension, detention and harassment and which created a poisoned school environment which adversely affected the applicant’s ability to learn. The applicant denied that he engaged in the behaviours that resulted in suspensions. B.M. also took the position that Hilltop fabricated many of the allegations against the applicant and argued that there was a pattern of discrimination based on race and disability.

8The Application refers to the following incidents:

On October 23, 2007, B.M. received a phone call from the school advising that the applicant had been suspended for threatening to “shank” a student.
On October 31, 2007, B.M. received a phone call from the school advising that the applicant was wandering the halls, which was considered unsafe. She was also advised that a college student had been assigned to monitor the applicant.
On November 12, 2007, the applicant claims that he was interrogated by two police officers without the presence of an adult or school staff member.
On November 13, 2007, the applicant claims that he was summoned to the office and was placed on an I.D. parade conducted by two police officers in the absence of any staff member or parent.
On November 14, 2007, the applicant was suspended for one day.
On November 20, 2007, the applicant was required to spend the entire day in the office without work being provided.
On November 27, 2007, the applicant was called to the office for no reason and on November 29, 2007, the applicant was paged to return to class despite the fact that he was already in the classroom.
On December 3, 2007, the applicant was suspended indefinitely pending completion of an investigation of an alleged case of assault. As a result of this investigation the applicant was denied access to the school from December 10 to 17, 2007.
On December 18, 2007, the applicant was denied break time.
On December 20, 2007, the applicant received a one-day suspension for choking another student and was later interrogated at home by two police officers who accused him of assaulting another student.

Althouse

9The applicant continued to attend Grade 6 at Althouse from January 31, 2008, until April 29, 2008. Greg Freeman (“Mr. Freeman”) and Jennifer Newby (“Ms. Newby”) were principal and vice-principal at the school. The following allegations were raised in the Application in support of the applicant’s claim of harassment and discrimination on the basis of family status, race, colour and place of origin and disability:

The applicant was unfairly judged and questioned by Mr. Freeman on the first day at Althouse when asked, “how did you get into this school”.
The applicant was falsely accused and received a one-day suspension on February 1, 2008, for assaulting another student.
The applicant was left isolated in a room with no teacher present following a meeting about the February 1, 2008 suspension.
On February 5, 2008, the applicant was unnecessarily questioned about his cell phone and was denied access to the washroom during lunch recess.
On February 5, 2008, the applicant’s teacher Mr. Nazarian falsely and maliciously accused the applicant of making suicidal threats and told the applicant he should go for a psychiatric assessment.
On February 7, 2008, the applicant experienced further harassment and discrimination in class by Mr. Nazarian.
On February 8, 2008, the applicant claims Mr. Nazarian told him that he was not welcome in his class and that such statement was supported by the principal.
On February 14, 2008, Ms. Newby unfairly interrogated the applicant about possession of a knife or weapon and forced him to empty his pockets without explanation.

Elmbank

10The applicant was enrolled at Elmbank for two years from September 2008 to June 2010 for Grades 7 and 8. During the 2008-2009 school year, Aldona Volunge (“Ms. Volunge”) and Glen Edwards (“Mr. Edwards”) held positions of Principal and Vice-Principal at the school.

11This Application refers to a number of suspensions that were imposed on the following dates; a three-day suspension on December 17, 2008; a two-day suspension on March 27, 2009; a five-day suspension on April 22, 2009; a one-day suspension on May 11, 2009; and a two-day suspension on June 4, 2009. The applicant alleges that all of the suspensions were not justified and constituted a pattern of harassment and discrimination and were a direct reprisal by school administrators against him because of his previous human rights applications. He claims that Mr. Edwards, in particular, harassed and discriminated against him as early as September 2008 when he asked the applicant how to rate his day and then proceeded to belittle the applicant through his response. The applicant also believes that he was treated differently in a situation where he claimed that he was slapped in the face by another student on September 22, 2008. Despite the applicant reporting the alleged assault to school administrators, he believes that the other student was not disciplined. The applicant also claims that one of his teachers, Luke Persaud (“Mr. Persaud”), and the guidance counsellor Pernel Woolcock (Ms. “Woolcock”) abused their power to frustrate, antagonize, target, harass and discriminate against him.

Decision

12While it was evident that the applicant’s mother is a parent dedicated to her son and his education, I cannot find evidence of discrimination with respect to any of the above-noted allegations. Each Application is dismissed on the merits. What follows is a summary of the evidence and my reasons for the Decision.

Chronology of Events

Westway

13When the applicant enrolled at Westway in September 2006, Ms. Beischlag held an intake meeting with the applicant’s mother B.M. During the meeting, B.M. provided Ms. Beischlag with a medical note from Dr. Llewellyn Joseph dated August 30, 2005, which stipulated that the applicant was diagnosed with ADHD/ODD and that he required enhanced academic, emotional and behavioural support. The doctor’s letter also noted “other measures” of “psycho-educational testing with a view to an Individual Education Plan (“IEP”) and use of cooperative problem solving for oppositional behaviour pattern”.

14Ms. Beischlag testified that following this initial meeting, she began to implement a range of strategies to assist the applicant academically, behaviourally and emotionally. An IEP was developed and implemented which listed strategies and accommodations to address support that the applicant required. The IEP noted that the student was not formally identified with exceptionality through the Identification and Placement Review Committee (“IPRC”) but, as determined by the School Support Team recommendation, required special education program/services including modified/alternative learning expectations and/or accommodations. The IEP also noted that the applicant was under-achieving in Literacy and Numeracy.

15Initially, the applicant was placed with a teacher who had experience working with students with behavioural difficulties and was provided with withdrawal support for special education services. Specifically, the applicant was placed with a Special Education Teacher five mornings per week for language and math and then participated in the regular classroom each afternoon. The IEP noted a number of instructional, environmental and assessment modifications and accommodations with respect to reading, mathematics and writing such as reinforcement incentives, rephrasing, repetition of information, high structure, strategic seating, proximity to instructor, alternative work space, reduction in number of tasks, oral response, extra time for processing, more frequent breaks, prompts, extended time limits and computer options.

16By December 2006, Ms. Beischlag had a number of concerns about the applicant’s behaviour in school and decided to hold a meeting with B.M. and Esther Saltzman from the School Board’s special education department. Prior to this meeting, Ms. Beischlag sent an email to Ms. Saltzman summarizing concerns and educational/behavioural strategies and their effectiveness on the applicant. A variety of strategies implemented by Ms. Beischlag included Principal intervention and coaching, regular teacher conferencing with the student, regular withdrawal for one-on-one academic and behavioural support, extra breaks by providing the student a hall pass, use of the gym as a break from other students and offering a reward box prize based on weekly good behaviour.

17Ms. Beischlag recalled that during this meeting she recommended psycho-educational testing for the applicant in order to facilitate more informed programming to help improve academic performance and behaviour. However, Ms. Beischlag stated that B.M. did not want the applicant to undergo psycho-educational testing as she felt uncomfortable with the amount of personal information she would need to provide in the process. Ms. Beischlag also recalled recommending psycho-educational testing again in June 2006, but that B.M. declined to pursue this testing. The applicant’s mother denied that psycho-educational testing was ever offered by Ms. Beischlag and claims that such testing was not offered by anyone from the School Board until 2009.

18Following the meeting with Ms. Saltzman, the applicant was placed in Special Programs Behaviour Class which was housed in Westway. Ms. Beischlag explained that this was a very small class for students from different schools who had undergone psycho-educational testing. Although the applicant had not undergone testing, Ms. Beischlag offered to enrol the applicant in this class as a visitor because there was space and it was housed at Westway. The applicant did attend this class from January to June 2007.

19B.M. generally agreed that she and Ms. Beischlag had good communication during the applicant’s time at Westway and that she understood that an IEP had been developed to assist the applicant. However, B.M. also stated that she wasn’t aware of all of the details for support that were contained in the IEP and that she disputed that some of the strategies were implemented such as withdrawal for behavioural support and the extent of academic support the applicant was receiving.

20With respect to the specific allegations in the Application, Ms. Beischlag explained that the applicant was never disciplined for his outburst regarding his father. What she did state was that in late 2006, B.M. and the applicant’s father attended a meeting with Ms. Beischlag during which B.M. gave permission for the school to contact the applicant’s father directly. On February 1, 2007, an incident arose when the applicant became upset when his teacher mentioned that she had a good talk with his father the night before. It was undisputed that the applicant’s reaction was yelling, slamming books, swearing and stomping. While the applicant recalled spending the whole day in the office, the teacher’s behaviour log for that incident noted that the applicant was removed from class and supervised by another staff member in the office until recess after which the applicant calmed down, apologized for his behaviour and was sent back to class.

21Regarding the one-day suspension on February 6, 2007, Ms. Beischlag explained that the decision was made in light of the fact that the applicant had been accused of taking snacks from other boys in the past and had been told by her and his mother, as late as February 2, 20007, not to accept snacks from other students. Ms. Beischlag recalled meeting with B.M. on February 2, 2007, because complaints had been made by other parents to the police alleging that the applicant was taking other students’ snacks and regarding complaints about misbehaviour related to snow forts. The applicant was one of a number of students involved in conflicts around snow forts and a decision was made to ban snow forts at the school and not to deal with the applicant individually. However, Ms. Beischlag testified that during that meeting, she also discussed with the applicant and his mother that he would eat lunch with a friend in the office and to stay away from the other students who raised the complaints. He was also reminded not to accept or take snacks from other students and to only eat what was provided in his lunch bag.

22Following this meeting, two other students along with their parents reported to Ms. Beischlag that the applicant had again taken snacks. One of the boys who complained also had a disability. Ms. Beischlag then conducted an investigation with each of the students involved and discovered that the applicant was one of three boys involved in taking snacks but that the applicant persistently asked for the other student’s snacks to the point where the student felt intimidated by the applicant and that he had no choice but to hand over the snacks. Based on her findings of this investigation and her meeting with the applicant and B.M. on February 2, 2007, Ms. Beischlag determined that it was appropriate to suspend the applicant for one day since, unlike the other boys involved, this was not the first time issues about the applicant taking others’ snacks had occurred and different strategies had been discussed with him and his mother to deal with snacks and lunches.

23While the applicant testified about trading snacks with other students which he claimed was a common occurrence, he had no recollection about any discussion with either Ms. Beischlag or his mother concerning rules and strategies about not sharing snacks nor did he recall the student who accused him of taking snacks. He denied that he forced other students to give him their snacks and he believed he was singled out and unfairly suspended. B.M. agreed that she met with Ms. Beischlag on February 2, 2007, and that they had discussed some strategies for the applicant but she viewed the February 6, 2007 suspension as unreasonable, claiming that the applicant had been singled out because of race. She also stated that the applicant was also targeted because of his ADHD and ODD diagnosis and commented that there is a tendency for “troubled” children to be accused of improper behaviour. Following the suspension, B.M. contacted Westway’s School Board Superintendent and an agreement was reached with Ms. Beischlag that the suspension would be removed from the applicant’s Ontario Student Record (“OSR”) at the end of the year if no other incidents occurred. Ms. Beischlag testified that at the end of the school year in June 2007, the suspension was removed from the applicant’s OSR.

Hilltop

24At Hilltop, the applicant was initially placed in a special education class called the Home School Program (“HSP”) where he received support and accommodation in accordance with an updated IEP dated October 16, 2007. Like the previous IEP at Westway, this document noted that the applicant had not been formally identified with an exceptionality but required special education programs and services as recommended by the School Support Team. The IEP also indicated that the parent had been consulted as a source in its development. In terms of instructional accommodations the applicant was offered extra time for processing, computer options, note-taking assistance, organization coaching and reduced/uncluttered format. Environmental accommodations included quiet setting, study carrel, alternative work space and proximity to instructor. Assessment accommodations were computer options, extended time limits, oral responses including audio tapes, extra time for processing and verbatim scribing. Under each academic subject heading, the IEP listed in detail a number of alternative teaching strategies and options and modifications. In terms of behaviour, it was noted that the annual program goal was to improve self-control and interact positively with peers and adults. A number of teaching strategies and assessment methods were listed in order to meet learning expectations such as: asking the applicant to rephrase sentences to be more polite; post rules and practice day-to-day routines; partner work and small group activities, acknowledge student when he is honest and insist on the truth; acknowledge student when he accepts consequences and maintain consistency; give student opportunities to walk, take a drink, visit the office area; self-evaluation with teacher, report marks for cooperation with others and conflict resolution. In terms of establishing steps to complete a task, the IEP noted specific steps that the applicant should follow; provide small group instruction; reinforce with positive incentives and communicate with parents to share information; ways to help and talk about the student’s successes.

25Both Ms. McBeth Mutter and Ms. Fetterolf testified that over the course of his time at Hilltop, the applicant was involved in many behavioural incidents that did not result in suspensions. Ms. McBeth Mutter commented that several of the incidents caused her concern for the applicant’s safety and that of other students, including verbalizing that he wants to be shot or die, engaging in acts of physical aggression, swearing at teachers and students and wandering around school unsupervised, including interrupting other classes. In addition she was concerned about the impact of the applicant’s behaviour on his education because his learning was frequently interrupted. Ms. McBeth Mutter stated that she had a duty to report incidents to the applicant’s parent and also determined that it was necessary to call the Children’s Aid Society in December 2007 regarding concerns about the applicant’s welfare.

“Shank” Incident

26Ms. Fetterolf testified that on October 23, 2007, she received information from a teacher and student that the applicant threatened to “shank” the student, a term she understood to mean stab. Ms. Fetterolf investigated the allegation and asked the applicant to respond to the allegation, which he denied occurred. Based on her investigation, Ms. Fetterolf concluded that the applicant did make the threat. The applicant denied making this threat and testified that he didn’t even know what the word shank meant and that he had to look up the definition on his computer when he got home that day. B.M. also testified that she believed her son’s story that he did not make this threat.

27Ms. Fetterolf reported the incident to Ms. McBeth Mutter who decided, because of the seriousness of the applicant’s conduct, to impose a one-day suspension. B.M. met with Ms. McBeth Mutter the next day to discuss the suspension during which B.M. raised the applicant’s ADHD and ODD diagnosis to explain his behaviour. As a result of this discussion, Ms. McBeth Mutter decided to impose a lesser consequence and reduced the suspension to an “in-school suspension” where the applicant was withdrawn from his regular class instead of being sent home, and allowed to remain in the school office to work on classroom assignments under the supervision of the vice-principal. During her cross-examination B.M. agreed that, while she did not believe the applicant threatened another student, she acknowledged that reducing the suspension to an “in-school suspension” resolved the issue to her satisfaction. The applicant denied that he was questioned by Ms. Fetterolf and claimed that he served the suspension at home, not in school.

Wandering Halls & Failure to Follow Rules

28Ms. McBeth Mutter called B.M. on October 31, 2007, to report that the applicant was frequently out of class and wandering the hallways. The applicant denied that he wandered the halls and stated that he only left for a few minutes each time to use the washroom and sometimes talked with other students in the hallways. Both Ms. McBeth Mutter and Ms. Fetterolf also mentioned how they had contacted B.M. previously to report situations in which the applicant swore at teachers, disrupted classes, fought and refused to remain in class. Ms. McBeth Mutter explained that because the applicant’s behaviours increased to such frequency, she allocated resources to bring in a behaviour specialist trainee who was job-shadowing the applicant’s classroom teacher. The trainee assisted the applicant in class with school work and accompanied him when he left the class to walk the halls. B.M. was advised and expressed no objection about the behaviour specialist trainee assigned to assist the applicant.

Police Interrogation & Identification Parade

29The applicant alleged that he was called down to the office by Ms. Fetterolf and interrogated by a female and male police officer in the principal’s office for 20 minutes concerning information about a stolen item. He stated that he was questioned by the police officers without an adult present. The applicant recalled being asked two questions by the officers and then being sent back to class. B.M. also submitted that the applicant was the subject of an identification parade by the police officers in which she believed he was identified from a group of random students. Ms. McBeth Mutter testified that she had no knowledge of a police identification parade or of the police questioning the applicant. She also stated that both situations suggested by B.M. would not be permitted by the School Board, as a student must be accompanied by a school administrator or parent/guardian in the presence of police. Ms. McBeth Mutter did recall another incident when the police were attending at the school and observed the applicant going up to the officers and telling them that he knew something about the incident that they had come to the school to investigate. Ms. McBeth Mutter also remembered that, on another occasion when police were visiting the school, the applicant muttered “why don’t they just shoot me in the head”. The applicant also recalled making that statement and stated that he said this because he felt that he was always being accused of misbehaving.

November 14, 2007 Suspension

30On November 14, 2007, the applicant was suspended for one day for fighting, using profane language and refusing to follow directions. The applicant denied engaging in any of the alleged behaviours. B.M. attended two meetings at the school to discuss the issuance of the suspension. The first meeting occurred on November 19, 2007, but ended as B.M. wanted to reschedule so that she could attend with more people to support her. A second meeting happened on November 23, 2007. In attendance were B.M. and a friend, Ms. Fetterolf, Ms. McBeth Mutter, the applicant’s French teacher, and Michael Hill, the School Board’s Safe Schools Director. Ms. McBeth Mutter’s notes from that meeting indicate that B.M. asked if the Principal had seen the Doctor’s report from 2005 noting the applicant’s diagnosis of ADHD and ODD. Ms. McBeth Mutter noted that while this was a medical diagnosis, she recommended that the applicant have a psychological assessment in order to plan for him educationally. While B.M. testified that she was not offered an opportunity for a psychological assessment, Ms. Fetterolf’s notes from the meeting quote B.M. stating “I’m not going to let you touch him, not you people”. The notes also indicated that B.M. said no and did not provide permission for the applicant to be discussed at the School Safety Team meeting or to have the Itinerant Behaviour teacher work with the applicant. Ms. McBeth Mutter recalled B.M. being agitated in the meeting and stating that the applicant was being targeted, making reference to the Human Rights Commission several times. The meeting ended with agreement on protocol for contacting B.M., that the applicant would not leave class without permission and that a tracking sheet reviewing the applicant’s progress or concerns would be provided to B.M. each day for her signature.

November 20, 2007

31The applicant claimed that he was forced to spend the entire day in the office with no work being provided. Ms. McBeth Mutter recalled that a number of concerns about the applicant’s behaviour were brought to her attention that day and she kept a record of the applicant being sent to the office and spending time there. Ms. McBeth Mutter also remarked that because of the challenges with the applicant that day, that she contacted B.M. to ask her to speak with Ms. Fetterolf, but that B.M. refused to have a discussion. B.M. stated that she was not prepared to discuss the applicant’s behaviour over the phone.

Applicant Paged to Return to Class

32The applicant claimed that he was paged on November 29, 2007, to return to class but that he was already in class, thus arguing that this instance demonstrated another example of harassment. The respondent’s evidence was that there was no recollection of this instance of paging the applicant but that it may have occurred. It was explained that the applicant frequently left class without permission and that if he was missing longer than 10 minutes, either Ms. Fetterolf or Ms. McBeth Mutter would walk around the school building, housed over two floors plus a basement, with walkie-talkies trying to find the applicant. If the applicant could not be located, the office would often resort to paging him to either return to class or to the main office. The respondent witnesses agreed that given the size of the building and where they needed to search, it may have been possible that the applicant might have returned to class on his own, prior to being paged.

Suspension December 3, 2007

33The applicant was suspended for two days on December 4, 2007, and provided with a suspension letter dated December 7, 2007. The applicant denied that he engaged in any of the behaviour attributed to him. According to the respondent, the applicant was suspended for frequently leaving class without permission, entering other classrooms and interfering with the learning of other students. The respondent noted that the applicant, for example, would enter a classroom which housed students with mild intellectual disabilities and disrupt the class or would enter a class and start writing on the chalkboard. Both Ms. Fetterolf and Ms. McBeth Mutter witnessed the applicant’s behaviour and received numerous reports from teachers concerning his behaviour.

34B.M. objected to the suspension, claiming that she was told that the applicant was being suspended for throwing ice at another student. Ms. McBeth Mutter agreed that she did contact B.M. about the ice-throwing incident to advise that she would be investigating, but ultimately Ms. McBeth Mutter determined that the applicant did not throw ice intentionally, so she did not impose a suspension in that case.

35In terms of the actual suspension issued on December 4, 2007, Ms. McBeth Mutter explained that in deciding to impose a suspension of two days, she did consider the fact that the applicant had been diagnosed with ADHD and ODD. However, she stated that, based on her experience, she was of the view that the applicant’s behaviours were not as a result of his diagnosis, and that he had the ability to improve. As a result she determined that a two-day suspension in this instance was an appropriate tool.

Denial of Access – December 10, 2007

36Due to serious ongoing conduct issues with staff and students, the applicant received a Denial of Access Order, pursuant to section 305 of the Education Act, R.S.O 1990, c. E.2, as amended, and its Regulation 474/00 s. 3 (1) and (2), in which he was prohibited from attending Hilltop for the period between December 11-17, 2007. The applicant was provided with school work during the period he was absent from school. Before making the decision to deny access to the applicant, Ms. McBeth Mutter consulted with the Safe Schools Director, Esther Saltzman, Special Education Director, Support Services, the School Board’s legal department and the applicant’s mother. The Denial of Access documentation summarized the following about the applicant:

Serious safety concern to himself and others
Leaves class without permission and avoids staff by hiding in locations that require teachers to leave classes to search for him
General defiance regarding cell phone use
Uses profane language against teachers
Threatened to get scissors and stab students
Mentioned threat of wanting to kill himself
Under investigation for breaking into students lockers and for theft
Heard calling staff racists and students “niggers”
Teaching staff and office staff have reported feeling anxious and fearful about working with the applicant
The applicant’s mother has refused a request to discuss him at School Team or to have the Itinerant Behaviour Team work with the applicant
The applicant’s mother has refused to put him forward for psychological assessment to assist with educational programming and has refused to speak with the Principal.

37As part of the Denial of Access process B.M. was invited and did attend a meeting to discuss the applicant’s return to the school. In attendance at the meeting were Ms. McBeth Mutter, Superintendent Leila Girdhar, the Board’s Safe Schools Director and B.M. accompanied by her advocate. Ms. McBeth Mutter proposed a structured day with more built-in breaks for the applicant and the use of a communication book to facilitate written communication between B.M. and the school, both of which were agreed to by B.M. A safety plan was also created for the applicant that was to be sent home for B.M.’s input; however, B.M. denied being given a safety plan to review.

38The applicant returned to Hilltop on December 18, 2007, but on December 20, 2007, received a two-day suspension for assault related to choking another student around the neck. The applicant denied engaging in this behaviour. Ms. McBeth Mutter stated that she conducted a full investigation, had two eyewitnesses and spoke with the victim and gave the applicant an opportunity to tell his side of the story, which he refused. Ms. McBeth Mutter also acknowledged that in making her decision to suspend, she did consider the applicant’s diagnosis of ADHD and ODD but concluded that the applicant’s physical aggression was not as a result of ADHD or ODD and had no information to suggest that he was unable to control his behaviour. As a result, Ms. McBeth Mutter decided that the suspension was an appropriate consequence and behaviour management strategy which would assist the applicant in improving his behaviour. Ms. McBeth Mutter also noted that school work was sent with the applicant to cover the period of suspension and that Hilltop continued to send school work to the applicant after the school break in January 2008 when he did not arrive at school. Unbeknownst to Hilltop, B.M. had removed the applicant from Hilltop and had requested a transfer to another school in January 2008.

Althouse

39Mr. Freeman testified that he received a call in January 2008 from the school’s Superintendent requesting a transfer for the applicant, but was provided with no other details. Mr. Freeman agreed to the transfer. On January 31, 2008, the applicant arrived at Althouse and attended an intake meeting with B.M. and her advocate Jam Johnston, Mr. Freeman and Ms. Newby. As this was the applicant’s first day of school at Althouse, Mr. Freeman had not yet received the applicant’s student records from his previous schools, nor had he received a copy of the applicant’s current IEP. It was undisputed that B.M. and the applicant did not disclose the applicant’s ADHD and ODD diagnosis during the intake meeting and that it wasn’t until the third week of February 2008 that the applicant’s diagnosis was shared with Mr. Freeman.

40During the intake meeting, Mr. Freeman welcomed everyone and proceeded to ask the applicant how he came to Althouse. In his testimony, Mr. Freeman explained that since the applicant did not live in the school’s catchment area, he asked the question because he was curious about why the applicant was now at Althouse since transfers mid-year were less common. Mr. Freeman agreed that B.M. spoke about how the applicant was transferred for a fresh start. Mr. Freeman also recounted that it was agreed that the applicant would be placed in a Home School Program for at least two hours per day and that general routines of the school were outlined. He also recalled asking the applicant about strengths and areas for growth and what he would do differently at Althouse compared to his other school. He remembered that the applicant identified his strengths as math, science, gym, art and history and that in terms of areas of growth the applicant said he would try to stop fighting, stop wandering, and stop chasing people. Ms. Newby’s testimony and notes that she took during the meeting confirm Mr. Freeman’s recollection of the discussion during the meeting. Mr. Freeman did not recall any objection during the intake meeting by B.M. or the applicant or her advocate to the questions that were asked by him.

41B.M. testified that during the intake meeting it was not welcoming and it was unreasonable for Mr. Freeman to ask the applicant directly how he came to the school. She commented that the question was offensive because the decision to transfer was made by the Superintendent based on her request to transfer C.M. She also disputed that the applicant was asked how he would do things differently and that he said that he would stop fighting and wandering the halls. She also disputed that there was a discussion about the applicant’s strengths. During her examination- in-chief, B.M. stated that they spoke about school planners, agendas and arrival times; however, during cross-examination she disputed that the school rules were reviewed.

Suspension February 1, 2008

42On January 31, 2008, the applicant’s first day at Althouse, a complaint was brought against him by a girl in his class that the applicant had slapped her on the bottom twice despite the fact that she had asked him to stop. The applicant denied that he engaged in the behaviour, claiming he didn’t even know the girl who accused him. Mr. Freeman contacted B.M. that day to advise her that the applicant would be required to stay at home until the investigation was complete. B.M. did not want the applicant at home, so she brought him to school the next day on February 1, 2008, and said that she would only take the applicant home if Mr. Freeman suspended him. The applicant remained in a conference room adjacent to the office and was provided school work. By mid-morning on February 1, 2008, Mr. Freeman had spoken with a number of students who all claimed that they had witnessed the applicant’s behaviour. He also stated that he spoke with the applicant, but the applicant testified that he wasn’t asked anything by Mr. Freeman. Mr. Freeman’s notes, however, demonstrate that he spoke with the applicant, who said that he had hit someone in the hall by accident and that he had apologized. Attached to these notes was a handwritten note that Mr. Freeman said was the applicant’s written explanation for the incident in which the applicant stated that he didn’t do anything but also says he was sorry. Based on his investigation, Mr. Freeman concluded that the applicant had slapped the female student twice and decided to impose a one-day suspension for sexual harassment. Mr. Freeman explained that the range of consequences for such conduct is a suspension between 1-19 days, but that since it was the applicant’s first day at school, a one-day suspension was more appropriate in the circumstances. The applicant was allowed to serve the suspension in school that day, under supervision and was provided with school work.

43B.M. claimed that the suspension was a personal vendetta by Mr. Freeman and discriminatory on the basis of race. She claimed that her son was denied the opportunity to tell his side of the story that he didn’t know the student. On February 4, 2008, she sent a note to Mr. Freeman asking to see the copy of the applicant’s explanation that was written on a piece of paper. She also believed the decision to suspend was unfair because she was not permitted to meet with the female student’s parents to question them. Both she and the applicant denied that the explanation note written in response to the question “tell me why you are upset” was the applicant’s handwriting.

44On February 12, 2008, B.M. filed a notice to appeal the February 1, 2008 suspension and the appeal was heard on March 4, 2008, by a Committee of the Board pursuant to section 309(6) of the Education Act. The Appeal Committee issued its decision on May 13, 2008, upholding the suspension and finding that the applicant breached the Code of Behaviour at Althouse. The Committee also noted that “the Principal considered mitigating and other factors including the principle of progressive discipline, in his decision to impose a one-day suspension.” The Committee also considered the applicant’s IEP (which was not available to Mr. Freeman on February 1, 2008) and how the suspension would affect his ongoing education.

Cell Phone Questioning

45On February 5, 2008, Ms. Newby received a report that the applicant had a cell phone and was taking pictures of other students in the class. Ms. Newby followed up with the applicant and spoke with him privately to ask if he had a cell phone. The applicant told her that his cell phone was in his locker and together they went to his locker and he showed her the cell phone. Ms. Newby did not pursue anything further with the applicant and he was never searched. She explained that her actions toward the applicant were consistent with how she would have dealt with a similar report about any other Althouse student. She also confirmed that the school’s policy regarding cell phone use was reviewed with the applicant during the initial intake meeting on January 31, 2008. During cross-examination, while B.M. claimed that her son was falsely accused of carrying a cell phone, she agreed that it was not unreasonable for Ms. Newby to follow up on a report of in-class cell phone use and that in fact the applicant did not suffer any consequences.

Denial of Washroom Access

46On February 5, 2008, a teacher supervising the playground observed that the applicant had entered the building with another student during lunch recess. Ms. Newby approached them and asked why they were in the school building without a hall pass, which was the rule due to safety practices. No explanation was given and the boys were asked to leave the building. The applicant was not denied the use of the washroom, which B.M. agreed to on cross-examination. She also agreed that the applicant got into trouble because he did not have the hall pass at the time he entered the building.

Report by Mr. Nazarian

47Mr. Nazarian, the applicant’s homeroom teacher, recalled that on February 5, 2008, an educational assistant reported to him that she heard the applicant making death threats. He also recalled hearing the applicant say on January 31, 2008, that “I am going to end this life”. Mr. Nazarian found these statements to be quite alarming and on February 5, 2008, contacted the Children’s Aid Society (“CAS”) to make a report about these events. In the presence of Ms. Newby, he also contacted B.M. and informed her about the applicant’s statements and about the recommendation by the CAS that B.M. refer the applicant to an adolescent clinic. Mr. Nazarian recalled that B.M. did not respond well to this information and asked him whether he was a psychiatrist. She did not believe Mr. Nazarian’s reports and she accused him of not being truthful.

February 7 and 8, 2008

48The applicant alleged that over the course of these two days he was sent to the office for little or no reason and was told by Mr. Nazarian that he wasn’t wanted in his class. He also claimed that he was unfairly searched for a knife by Ms. Newby. In his evidence the applicant was not consistent about whether it was Mr. Nazarian or Mr. Freeman who made the remark about not wanting him in the class. The applicant also claimed that he suffered discrimination and harassment because he was forced to sit at a desk that was attached to Mr. Nazarian’s that resulted in him being segregated from the other students. Mr. Nazarian explained that the applicant’s IEP required proximity to the teacher so the applicant’s desk was arranged next to his as an accommodation. The applicant was also free to move through the class to work on group projects or with permission like any other student.

49Mr. Nazarian asked B.M. to attend a meeting on February 7, 2008, to discuss ways to support the applicant. Mr. Nazarian recalled that B.M. asked where the applicant sat in class and took pictures of his desk. She also stated that her son had been falsely accused of carrying a cell phone and taking pictures of other students, which Mr. Nazarian denied doing. B.M. also mentioned that she would be contacting her lawyer. Mr. Nazarian decided to end the meeting because their discussion was not productive.

Knife Search

50In terms of the knife search incident on February 14, 2008, Ms. Newby explained that she had received a report that the applicant may have been carrying a knife, so she followed up with him while he was in the office, with her office door open. She asked the applicant whether he had a knife or anything which could have been mistaken for a knife. When the applicant said “no”, she then asked him to empty his pockets, which he did, producing some candy wrapper and tissue. The applicant said he complied because he “knew that he had nothing on him”. Ms. Newby stated that she explained to the applicant that someone thought he may have been carrying a knife and that it was best to be sure and she thanked him for cooperating. The applicant recalled that he was called down to the office by Ms. Newby and that she put her hand in his pockets to search for a knife and that she told him that his mother gave her permission to do that. Ms. Newby disagreed with his version of events and confirmed that, in any event, in her capacity as vice-principal, she did not require his mother’s permission to conduct a search. B.M.’s evidence on this point was that Ms. Newby targeted her son by forcing him to empty his pockets. She also said that she would not have given Ms. Newby permission to search her son.

The applicant’s overall experience at Althouse

51Mr. Freeman and Ms. Newby contacted B.M. on several occasions to inform her of various incidents where the applicant had breached school rules or where his behaviour gave them or his teachers cause for concern. Examples included frequent swearing at staff, including Mr. Freeman; disruptive class behaviour; leaving class without permission and refusal to co-operate with adults in the school building. The applicant denied engaging in such behaviour. The applicant also claimed that he did not receive any support from the school, did not have an IEP or that he was in the HSP class.

52The applicant was suspended eight times during his enrolment at Althouse totalling 23 days. Mr. Freeman and Ms. Newby also explained that the applicant had been involved in many more instances of misconduct that did not result in a suspension. Mr. Freeman also stated that once he became aware of the applicant’s diagnosis of ADHD and ODD he always considered that as a mitigating factor when disciplining the applicant. For example, instead of imposing a formal suspension, alternative actions were pursued such as phone calls home, asking the applicant to report to the office or guidance department for conferencing and counselling and working with the applicant to think about better strategies and options that he might choose to change his behaviour.

53The applicant’s IEP from Hilltop was revised to include additional accommodations to address academic and behavioural issues including proximity to the teacher, more breaks, speaking clearly and softly to the applicant to avoid upsetting him, small group work, additional time for test writing, language and math remedial work and attending the Home School Program. Mr. Freeman also stated that once he was told that the applicant had a diagnosis of ADHD and ODD, he spoke with all school staff to discuss positive ways to interact with the applicant because he wanted a common understanding and approach to dealing with him. The applicant was also discussed at the School Team meeting, including his teachers and the guidance counsellors, to address different strategies to work with him.

54Each of the witnesses from Althouse remarked that B.M. was generally not cooperative in her dealings with them and often accused them of making false allegations against the applicant. Although B.M. believed she was doing the best for her son, she admitted that she did not trust Mr. Freeman from the start. From the school’s perspective, at the same time as the applicant’s behaviour escalated, it became increasingly difficult to have discussions with B.M. who by February 21, 2008, said she was not to be contacted at work unless it was an emergency. From her standpoint, B.M. felt she was constantly being interrupted at work, which was problematic for her own job security and she believed that the school should be responsible for managing the applicant’s behaviour. She also chose not to participate in five of the re-entry meetings following the applicant’s various suspensions, which were designed to discuss consequences and plans to improve the applicant’s behaviour and academic progress.

55By mid-April 2008, Mr. Freeman came to a conclusion that the applicant was not having success at Althouse and without B.M.’s parental support and partnership, he had no reasonable alternatives for moving forward. After consulting with the School Board’s special education, legal and social work departments Mr. Freeman was able to secure the applicant’s transfer to the Community Initiative for Student Success (“CISS”) Alternative to Suspension Program which was housed in the school building at Elmbank. This was a program which focussed on the development of skills that are critical to school success such as concepts of self and self-esteem, communication with others, coping abilities, regulation and advocacy. Mr. Freeman developed an action plan for the staff at the CISS program which reflected the applicant’s strengths, academic and non-academic goals and the need for supports.

Elmbank

56Prior to the applicant’s first day of school at Elmbank in September 2008, B.M. met with Ms. Volunge. She advised Ms. Volunge that she believed that the applicant had been targeted and discriminated against at his previous schools and that she was involved in a number of human rights complaints and lawsuits relating to the other schools that the applicant had attended. Other than this information, Ms. Volunge and Mr. Edwards had no knowledge of the applicant or about any of the human rights complaints against the School Board in relation to other schools.

57During this initial meeting with Ms. Volunge, B.M. said she did not want her son to be unfairly judged and Ms. Volunge agreed that the school would do its best to provide for her son and that if supports were needed those decisions would be made together with the parent. Ms. Volunge stressed the importance of good and frequent communication and building trust, to which B.M. agreed. Later in their meeting, Ms. Volunge introduced Mr. Edwards to B.M. Both Ms. Volunge and Mr. Edwards recalled him being welcoming but that B.M. immediately became very hostile and accused the Board of placing Mr. Edwards at the school to target and harass the applicant. They also remembered B.M. saying to Mr. Edwards “I didn’t ask for you here” and asked him to leave the meeting. B.M. recalled that she only asked Mr. Edwards why he was at Elmbank because she had heard information about him. B.M. and Mr. Edwards had never met before and other than a general statement that she had heard about him, B.M. did not know him personally. Mr. Edwards also alleged that, on occasion, B.M. called him a racist and liar, which she strongly denied saying.

58During their first meeting, B.M. advised Ms. Volunge that the applicant had ADHD and a very high energy level. She also shared the Doctor’s note from 2005 and alerted Ms. Volunge to the applicant’s OSR. Ms. Volunge initially offered to place the applicant in the Home School Program; however, B.M. wanted the applicant in a regular classroom which she believed he could handle on his own. Ms. Volunge stated that she recommended that the applicant be referred to psycho-educational testing but that it was only in the fall of 2009, during the applicant’s second year at Elmbank, that B.M. finally agreed to have him tested. It should be noted that this testing took place after the Application involving Elmbank was filed.

59B.M. testified that she had a good relationship with Ms. Volunge, particularly during the applicant’s first few months at Elmbank. According to Ms. Volunge, B.M. co-operated with the school in some instances by participating in meetings and making suggestions for how to control the applicant’s behaviour, such as providing extra breaks or that if a supply teacher was present, that the applicant would be sent to another classroom where he would be more familiar with the teacher. B.M. also recalled suggesting taking away privileges and asked at least on one occasion that the applicant be placed in the in-school suspension program instead of issuing suspensions where he would be absent from school. Early in the applicant’s enrolment at Elmbank, B.M. also sought the assistance of an advocate from Family Services of the Jamaican Canadian Association who had contact with the school administrators, although as the applicant’s behavioural issues escalated, working with B.M.’s advocate became less effective because B.M. asked her not to continue dealing with the school. Ms. Volunge also noted that there were periods of time where the applicant did not engage in disruptive or defiant behaviour, usually following a period of suspension.

60Reviewing the overall experience at Elmbank, however, the school administrators and the applicant and B.M. often had very different versions or interpretations of the applicant’s behaviour and incidents. Ms. Volunge and Mr. Edwards recalled that the applicant continued to display significant behavioural difficulties which interfered with his learning and the learning of others. In many cases, the applicant was not suspended for infractions of school rules and both Mr. Edwards and Ms. Volunge testified about how they applied mitigating factors, including the applicant’s diagnosis of ADHD and ODD and engaged principles of progressive discipline. They both recollected that the applicant was exceptionally disruptive and disrespectful to staff and students and, in particular, towards Mr. Edwards. Examples of such behaviour included persistently leaving class without permission, wandering the halls, entering and interrupting other classrooms, swearing at staff including Mr. Edwards, fighting, and damaging school property. They also stated that the applicant denied his behaviour to B.M. and was heard telling staff and students that he was “untouchable” because his mother was suing the school. In her testimony, B.M. repeatedly stated that her son would not lie and that she believed what he told her and that she did not believe most of the reports regarding the applicant’s behaviour. According to the respondent’s witnesses, when she was told about behaviours by teachers in the student planner or notes, she would accuse the teachers of targeting, harassing and policing the applicant.

61The applicant disputed almost all of the behaviour he was accused of engaging in. Instead he claimed that he was unfairly suspended by Mr. Edwards for little or no reason or “just for fun”. He testified that he never swore at his teachers, had permission to leave the classroom and that only 50% of the time were explanations for the school’s discipline shared with him. He denied stating that he “can’t be touched” or “sue him”. He also claimed that the school didn’t do anything to assist him and that the teachers or administration never discussed his disability. However, when questioned further about strategies to assist him, he did recall being given a stress ball to use in grade 8, that he was permitted to play extra basketball with his friends and that a Hall Monitor, Mr. Russell, was assigned to supervise him. The applicant also alleged that he was not provided with a homework packages to take home during his suspensions. The respondent’s evidence overall was that the applicant was always given a homework package when he received a suspension and that if B.M. contacted them to advise that the applicant did not have homework, the package was sent again using various methods including taxi, registered mail or available for pick-up by B.M.

62The applicant received an updated IEP at Elmbank that included Instructional accommodations such as: re-wording/re-phrasing and repetition of information; organization coaching; time-management aids; ability grouping; high structure; note-taking assistance and buddy/peer tutoring. Environmental accommodations included: alternative work space, strategic seating and proximity to instructor. Assessment accommodations included: reduced/uncluttered format; extended time limits; verbatim scribing; alternative settings; oral responses; prompts and extra time for processing. In addition to the implementation of the IEP, Ms. Volunge and Mr. Edwards also explained that, in addition to attempting continuous communication with B.M. a variety of strategies were used by the school administrators and teachers to provide academic support and to address the applicant’s behaviour. Some examples cited by Ms. Volunge and Mr. Edwards included:

sensitivity training for all staff so that strategies of how to deal with the applicant shared by staff
creation of an individualized safety plan
providing additional scheduled breaks
offer of incentives for good behaviour such as additional basketball time or computer time
offering school services such as the guidance counsellor and special needs assistant
offering services of a child and youth counsellor
assigning a mentor (Mr. Russell) to the applicant
offering special education services, such as psycho-educational testing
offering to obtain assistive technology
offering the opportunity for the applicant to be in a HSP class for a half-day for increased academic and behavioural support
one-on-one counselling
arranging for the applicant to go to the language lab or communications room to do work if he was feeling agitated
correspondence with B.M. using the student planner

63B.M. agreed that a number of strategies were put into place to support the applicant. She disputed that a safety plan existed even though it was documented as part of the applicant’s OSR at Elmbank. Ms. Volunge noted that the safety plan was sent to B.M. for her review but it was never returned. B.M. also stated that she wasn’t aware that a mentor had been assigned to her son until the applicant told her.

September 2008 Interaction with Mr. Edwards

64In late September 2008, Mr. Edwards was concerned about how the applicant was behaving in school and, after repeatedly requesting that the applicant speak with him, the applicant agreed to meet. It was undisputed that during their conversation Mr. Edwards asked the applicant to rate his day between the numbers 1 to 10. At first the applicant responded with the number 5. Mr. Edwards then asked the applicant what he needed to improve upon and the applicant replied that he needed to stay seated and do his work. Mr. Edwards then asked the applicant what the applicant’s goal would be for the next week or day and the applicant replied with the number 10. Mr. Edwards then commented to the applicant that “10 was a lofty goal, and that he wasn’t expecting perfection”. Mr. Edwards then told the applicant that if he can get a 10 he would get down and “kiss your feet”. He then asked the applicant for a more reasonable goal and the applicant replied with the number 8. The applicant’s mother claimed that Mr. Edward’s questioning and, particularly the comment about kissing feet was offensive and discriminatory. Mr. Edwards explained that he was just speaking to the applicant informally and that he was trying to break down barriers by having a casual conversation.

Suspension Dated December 17, 2008

65The applicant was suspended for a period of three school days on December 16, 2008, for blowing chalk dust in a paper tube across the class, leaving the class repeatedly without permission, and for swearing at Mr. Edwards. The applicant denies engaging in any of the behaviour outlined in the suspension, but did acknowledge that it would not be appropriate to act in this way. Mr. Edwards recalled that a supply teacher was in charge of the applicant’s class that day and that the supply teacher called Mr. Edwards to the class in order to assist with the applicant and the other students. Mr. Edwards observed the applicant’s behaviour which occurred in front of the entire class and determined that his actions were extremely disruptive and disrespectful.

66The decision to issue a three-day suspension was made by Ms. Volunge after considering all mitigating factors. At the time, the applicant was being accommodated by the teacher in accordance with his current IEP. Prior to the suspension, Ms. Volunge and Mr. Edwards had used a progressive discipline approach to deal with similar disruptive behaviours which included counselling, goal setting, mediation, calls to B.M. and less formal disciplinary measures such as detention and in-school withdrawal. Ms. Volunge stated that suspension was used as a tool to support the applicant in correcting his behaviour. Ms. Volunge testified that she considered whether the applicant had the ability to control his behaviour and foresee the consequences of his actions and she concluded that he did have the ability, having observed him in other school situations and in meetings with B.M. She also considered the applicant’s diagnosis of ADHD and ODD and concluded that the applicant’s behaviour was not impulsive and not typical of her experience with students of ADHD or ODD. In this situation, the applicant had been repeatedly asked to stop throwing chalk dust and despite the requests made a decision to find chalk in the teacher’s desk, shave it and then roll it into paper which he then blew across the classroom.

67B.M. claimed that the school should have sent the applicant to a program for suspended students instead of requiring the applicant to serve the suspension at home. During her cross-examination, B.M. initially disputed that the applicant engaged in the behaviour but then stated that she didn’t know because she wasn’t there to witness the incident. She also questioned how the school could suspend a child with ADHD. Ms. Volunge explained that the in-school suspension program was available only to students who received suspensions longer than five days and that it was an independent program from Elmbank over which she had no jurisdiction. She also recalled that she had tried to have the applicant visit this class in the past but the applicant would not stay in the class, so she didn’t view sending him to this class as a useful tool because she did not have the confidence that he would stay in the classroom. Ms. Volunge confirmed that the applicant was sent school work to finish while he served his suspension at home.

68By mid-March 2009, there had been so many incidents involving the applicant that Ms. Volunge felt that the school was running out of strategies to deal with his behaviour, other than suspensions which resulted in some success. She also noted that the applicant began to show some academic success and wanted to build on that. Ms. Volunge contacted the Director of Education, Annie Appelby, to ask for suggestions on how to deal with and assist the applicant. In a letter to Ms. Appelby dated March 25, 2009, Ms. Volunge reviewed struggles that were still occurring with the applicant despite efforts to assist. Ms. Volunge also noted that while B.M. repeatedly told her that she wanted to be informed about what the applicant was doing, when a phone call was made to her or a note was made in his student planner, B.M. responded that the teachers are “liars” or that they are complaining.

69Ms. Volunge also contacted B.M. on March 17, 2009, to request a meeting with her and an advocate, if she wished, to discuss challenges that the school was facing with the applicant and to seek her counsel and advice regarding how to support the applicant during the next term. Ms. Volunge offered for B.M. to come into the school anytime between 6:30 a.m. and 9:00 p.m., even on a Saturday, or at a location that would better suit B.M. A meeting was ultimately held on April 17, 2009.

70Ms. Volunge’s notes of the April 17, 2009 meeting show that the only part of the applicant’s behaviour that was believed by B.M. was that he frequently left class (20-30 times per day) and disrupted other classes. It was mutually agreed, because of the applicant’s high need to move around and agitation, that he would be allowed two additional 10-minute breaks in the morning with the teacher’s permission and a hall pass and one additional break in the afternoon. It was also agreed that the applicant’s only access during these breaks would be the school’s downstairs perimeter. It was also discussed that staff yelling at the applicant was a huge trigger and that all staff would be advised, not only for the applicant but for all students, to use firm and calm voices.

Suspension Dated March 27, 2009

71The school’s guidance counsellor, Ms. Woolcock, was assisting another student who was emotionally upset and found the applicant standing over the student, invading the student’s personal space and saying negative things to the student. When Ms. Woolcock asked the applicant to move on he repeatedly swore at her in front of other students. The applicant was suspended for a period of two school days on March 27, 2009, for this conduct and was provided with work for the duration of the suspension. The applicant denied any involvement in the behaviour described in the suspension.

72In reaching the decision to suspend for two days, Ms. Volunge first investigated the incident and considered mitigating factors, including the applicant’s IEP, his safety plan and the fact that progressive discipline had been used previously to curtail the applicant’s swearing. Again, she believed that the applicant had the ability to control his behaviour and to foresee the consequences of his actions and she determined that a suspension would be effective as she had observed that the applicant’s behaviour did improve for a few weeks after the previous suspension.

Suspension Dated April 22, 2009

73The applicant was suspended for five school days for fighting. The applicant admitted to fighting but alleged that the suspension was discriminatory and claimed that he was not provided with an opportunity to tell his side of the story. The respondent’s witnesses, and in particular the applicant’s teacher, Mr. Persaud, recalled that the applicant at first refused to provide a statement, but then allowed him to ask questions and to scribe for him. The applicant denied that Mr. Persaud sat next to him and acted as his scribe and also claimed that the signature on the statement was not his.

74Ms. Volunge and Mr. Edwards stated that they investigated and collected a number of witness statements including the applicant’s. Based on the investigation, it was concluded that the applicant had left his classroom and gone into another classroom and initiated a fight by challenging another black student to a fight, which then broke out in the hallway. The fight was disruptive and violent and required the physical intervention of two staff members, Mr. Persaud and Clinton Russell. Due to the serious nature of the incident, Ms. Volunge issued a five-day suspension to both students. According to Ms. Volunge, the applicant and the other student had a history of fighting and both had been previously counselled about the inappropriateness of this conduct. As well, it was noted that both students had participated in a prior mediation, with the school librarian Mr. Gilbert, as a way to resolve their conflict which was documented in a four-page note by Mr. Edwards, dated December 4, 2008. In contrast, the applicant stated that the mediation with Mr. Gilbert never occurred. Ms. Volunge also testified that, in deciding upon the length of the suspension, she did consider the applicant’s diagnosis of ADHD and ODD and believed that due to his ADHD, it might have been difficult for the applicant to remove himself from the fight. In usual circumstances, a student who initiated a fight would be subject to a lengthier suspension, but considering all of the mitigating factors, Ms. Volunge determined that the five-day suspension was warranted. While the applicant claimed that he was not given any school work for the suspension period, the evidence of both Ms. Volunge and Mr. Edwards was that a homework package was prepared for the applicant to take home but that he left the school before receiving it. Ms. Volunge also testified that after the applicant left the school, she was contacted by Jason Cruickshank, a staff member at the local community centre near the school where the applicant had gone. Mr. Cruickshank was asked to contact B.M. to advise that a homework package to be done during the suspension period had been prepared for the applicant.

75The applicant also raised concern with how this suspension was communicated to both to him and his mother. The applicant claimed that he did not receive a suspension letter from Mr. Edwards. B.M. claimed that she was left messages by Mr. Edwards regarding the suspension both at work and at home but that Mr. Edwards failed to follow up with her directly. Mr. Edward’s testimony was that he left messages for B.M. at work and at home to advise that the letter of suspension, which was not taken by the applicant, had been sent by registered mail and that he asked that she return his call. In her cross-examination, B.M. admitted that she did receive messages from Mr. Edwards but that she wanted communication only through email.

Suspension Dated May 11, 2009

76The applicant was suspended for one school day on May 12, 2009, for persistently leaving class and entering and disrupting other classrooms. According to the respondent, when Mr. Edwards asked the applicant to leave the other classrooms; the applicant told Mr. Edwards that “he stinks” and called him a “batty man”, which is a homophobic slur. The applicant denied engaging in the alleged behaviour and argued that the suspension was a reprisal for filing past human rights complaints. B.M. stated that the suspension was not an appropriate response given the applicant’s ADHD arguing that he did not understand that his behaviour was disruptive and that he was not a “normal child”.

77Ms. Volunge testified that before imposing the one-day suspension, she considered mitigating factors, including the applicant’s diagnosis of ADD and ODD and previous similar incidents in which the applicant was not suspended. Ms. Volunge believed that the applicant could control his behaviour and that he could foresee the consequences of his actions and determined that a one-day suspension was appropriate in these circumstances.

Suspension Dated June 4, 2009

78The applicant was suspended for a period of two school days commencing June 5, 2009. The reason for the suspension was that the applicant slammed a locked gym door and took gym equipment without permission. When asked not to do this, he swore at the Vice-Principal. He also swore at another teacher later that day when asked to return to the classroom. The evidence was that both staff spoke politely to the applicant. The applicant denied engaging in this alleged behaviour and both he and B.M. challenged the respondent’s version of events, arguing that it was not possible for the applicant to slam open a locked door.

79Again, Ms. Volunge reviewed the behaviour and concluded that the removal of the gym equipment was not indicative of impulsive or hyperactive behaviour relating to ADHD or ODD. She also concluded that the applicant’s swearing was not appropriate, particularly given how the staff used a non-confrontational approach when requesting the applicant stop the behaviour. In Ms. Volunge’s view, the suspension was an appropriate response given the seriousness of the behaviour and that other progressive discipline strategies had been used previously. The letter of suspension and homework package was sent to the applicant by registered mail but was returned to the school as unclaimed.

Other Strategies June 2009

80Ms. Volunge testified that in late May 2009, due to the fact some of the strategies were not working well with the applicant, she approached the School’s Area Superintendent to ask if the Board would be willing to fund a one-on-one child and youth worker to assist the applicant until the end of the school year. Ms. Volunge knew that this particular child and youth worker had overcome challenges as a youth and had won a basketball scholarship and she believed that the applicant might relate well to him. Ms. Volunge explained that this type of assistance is never offered and that she was asking Ms. Appelby, given the unique circumstances, to fund the child and youth worker out of the Superintendent’s budget. Ms. Appelby agreed to pay for this assistance, and on June 2, 2009, Ms. Volunge sent an email to B.M. to offer the support of one-to-one Child Youth Counsellor who would remain with the applicant during school time to assist him for the remainder of the school year. She further advised B.M. that the youth counsellor who was available to work with the applicant was a trained counsellor/teacher of Jamaican background who had success working with youth and who is an activist within the Jamaican community. On June 4, 2009, B.M. replied by email stating that the applicant was being helped by another counsellor outside of school and also commented that he would be doing well at Elmbank, had he been given a chance to get an education without being labeled, harassed, targeted, and continuously be suspended because of past school problems.

81Although B.M. declined the offer for the Child Youth Counsellor, Ms. Volunge also offered a placement for the applicant to attend a six-week summer program that would be paid for by the Board and which was made available to 12 boys. The program involved a combination of recreation, social skills, anger management skills, and a learning component. B.M. did not accept this offer either. Ms. Volunge also remarked that the boys who took advantage of this summer program opportunity had more success the next school year as the program provided an extra boost for academic and emotional support prior to grade 8.

Allegation of Slapping

82The applicant has also alleged that, on September 15, 2008, he was slapped in the face by another student and that there was no investigation or consequence for the other student despite the fact that he reported the incident to the lunch room staff who took him to speak with Ms. Volunge. According to Ms. Volunge, no staff members informed her that the applicant reported being slapped by another student. Once the alleged incident was brought to Ms. Volunge’s attention by B.M. on October 1, 2008, Ms. Volunge took steps to investigate whether an oral or written incident report had been made to the office. She also spoke with the applicant’s teacher and lunch staff and none of these individuals had any recollection of the applicant making such a report to them. There also were no notes or written report, which is a requirement if an incident such as this one occurs. She also attempted to speak to the applicant about the incident but he refused to discuss anything with her.

Allegations against Mr. Persaud and Ms. Woolcock

83The applicant was a student in Mr. Persaud’s grade 7 class at Elmbank. Ms. Woolcock was the school’s guidance counsellor. Neither individual had any prior knowledge of the applicant or B.M. before his enrolment at Elmbank. The applicant did not have any specific evidence regarding his claim of harassment and being targeted by Mr. Persaud other than to dispute that he engaged in any of the behaviours outlined by Mr. Persaud in his testimony. The applicant argued that he was not the only student who moved around or talked in the classroom.

84Mr. Persaud testified that from the beginning of the year he was aware that the applicant needed support in the classroom. He did not become aware that the applicant had ADHD or ODD until later in the first term. Mr. Persaud testified that, based on the applicant’s IEP, he tried using a number of different strategies to assist the applicant to remain engaged and focused. Some examples of strategies that were tried by Mr. Persaud included:

permitting the applicant to tap pens and pencils on his lap
providing him with headphones and a USB drive so that he could listen to music while in language lab or listen to the computer
providing a stress ball and play dough
allowing the applicant to take frequent breaks
implementing the IEP summarized at paragraph 61 above
arranging for the applicant to have time to go to the language lab
assist with organization skills using timers and stickers and signals
breaking down assignments into manageable parts
routine conferencing with the applicant and frequent communication with B.M. through the student planner.

Mr. Persaud also testified about how as the year progressed, the applicant routinely left Class without permission and that he interrupted other classrooms, which was reported to him by other staff and teachers. He also indicated that although there were other students in the class who moved around, he noted that the applicant distracted other students and didn’t listen when asked to return to his desk. While Mr. Persaud stated that the applicant never swore at him, he did witness the applicant swearing at other teachers and at Mr. Edwards.

85When school began in September 2008, Ms. Woolcock, in her capacity as the school’s guidance counsellor, was asked to speak with the applicant. She met with the applicant in early September and asked him what she could do to help him settle into school. During their discussion, she asked the applicant about his strengths and she noted that he was being negative about himself. In an attempt to help the applicant feel better about himself, Ms. Woolcock reviewed the applicant’s OSR and showed him one of his best report cards which contained favourable remarks from his teacher. She suggested that the applicant should focus on his accomplishments and then she photocopied the report card page on coloured paper so that the applicant could post it on his bedroom wall as a reminder of his accomplishments. She also had the applicant write out a note that expressed that he would always try his best. She recollected that the applicant’s mood improved and that he eagerly accepted the photocopy of the report card. Ms. Woolcock also recalled that she talked to the applicant about strategies that he could put into place in terms of being on time, listening, preparation, not arguing and concerns with other students, as well as offering that he could come to speak with her anytime.

86The applicant did not recall their meeting being as positive as Ms. Woolcock suggested and did not recall many details about their discussion. He also stated that Ms. Woolcock kept pulling him out of class, which was embarrassing to him because he felt that he was being singled out. He mentioned that other students teased him by asking him if Ms. Woolcock was his mother.

87Sometime after meeting with the applicant, Ms. Woolcock telephoned B.M. and invited her to meet at the school due to concerns about the applicant’s behaviour in class. She also asked the applicant to attend. It was undisputed that the meeting did not go well. Only B.M. attended and when she arrived she presented Ms. Woolcock with a piece of crumpled paper that appeared to be the report card that Ms. Woolcock had photocopied for the applicant and expressed her disapproval that Ms. Woolcock had accessed the applicant’s OSR, claiming that Ms. Woolcock was picking on the applicant. Following this meeting, the applicant refused to visit Ms. Woolcock’s office. Ms. Woolcock was asked by Ms. Volunge not to continue working with the applicant. The only other interaction that Ms. Woolcock had with the applicant was their interaction in the hallway later in the year when the she claimed that the applicant swore at her after she asked him to leave another student alone.

Evidence of Dr. Mallouh

88Dr. Peter Mallouh is a Registered Psychologist who provides student psychological assessment services to the Board. In September 2009 he was asked to perform a psychological assessment of the applicant and to report back to Elmbank and B.M. The applicant had no issues with the process of the psychological assessment and was in agreement with the report and Dr. Mallouh’s findings. The applicant did not raise any further allegations about failure to accommodate following his testing by Dr. Mallouh. In addition, the applicant subsequently left the School Board and began attending a school within the Catholic District School Board.

89Dr. Mallouh’s report noted that the applicant suffered from a severe learning disability, involving low phonological processing and visual motor skills, depressed affect, anger management and locus of control issues, all of which had persisted for some time. Dr. Mallouh expressed surprise that the applicant had not been referred to him for testing earlier as most students are flagged for testing between grades 2 and 4. He commented that had the assessment been performed in grade 4, that it would have helped the applicant. He also questioned why B.M. didn’t ask for such assistance given that she knew for some time that her son was having problems in school.

90Dr. Mallouh found that the applicant was a bright student, with good vocabulary and good social and perceptual judgment. Dr. Mallouh testified that he believed that the applicant was able to control his behaviour despite the fact that he was diagnosed with ADHD and ODD. He described ODD as a pattern of negative, hostile, argumentative behaviour that is more related to attitude versus control and which can be improved through the use of behavioural therapies and problem solving. Dr. Mallouh stated that the applicant had control, was cooperative and easy to work with and that many of the applicant’s answers during the assessment showed that the applicant had good judgment and that he could exercise control over his behaviour. Dr. Mallouh also noted that some of the behaviours exhibited by the applicant such as wandering from class, disrupting other classes, hiding and fighting were not necessarily manifestations of ADHD or ODD but might have been caused by different underlying factors such as a severe learning disability of depressed affect. With respect to the use of suspension as a sanction, Dr. Mallouh explained that it is one option which is appropriate to use as a teaching tool to reinforce respect for rules and to show that certain behaviours are not tolerated.

Analysis

The applicant’s submissions

91I have carefully considered the detailed written submissions of the parties but I will not repeat all of them here. Briefly, the applicant submitted that between January 2005 until May 22, 2010, he was suspended 22 times for a total of 58 days and that most of the behaviour for which he received suspensions did not occur. He alleged that he was “picked on” by the administrators and teachers at all of the schools, including being followed unnecessarily, searched and harassed. In terms of B.M.’s evidence, the applicant states that her evidence was that her son was diagnosed with ADHD, ODD and a learning disability in 2005 and despite her best efforts a psychological assessment and the Identification Placement and Review Committee (“IRPC”) process was not done until 2009. She argued that if this process had been done sooner it would have shown that her son, because of his disabilities, was unable to grasp the consequences of his actions.

92B.M. argued that the pattern of suspensions and isolation that the applicant was subjected to constitute harassment and differential treatment because of his disability. In addition, the manner and frequency of the punishments created a poisoned school environment which adversely impacted his learning disability and his ability to receive an education, resulting in a failure to accommodate his disability under the Code. Furthermore, the applicant, because of his disability, could not comply with the requirements of the Education Act or Safe Schools Act unless the Board accommodated his special needs, which it failed to do so. In addition, the applicant argues that in some of the cases, the discipline was also discriminatory on the basis of race because only the applicant was subject to discipline while children of other races who were involved in an incident were not disciplined. The applicant further states that the harassment and discrimination he experienced was part of systemic patterns of insensitivity and differential treatment of racialized children.

93B.M. also states that most of the respondent’s witnesses conceded that they knew or ought to have known that the applicant was diagnosed with a psychiatric disability and that they failed to accommodate the applicant’s needs. He argues that the schools failed or neglected to take appropriate action and instead engaged in a series of suspensions which cannot be characterized as accommodation but instead represent punishment for actions over which the applicant had no control. In this context, the applicant submits that the respondent, as evidenced by the actions of at least four of the schools, failed to accommodate him to the point of undue hardship because they failed to consider alternative consequences for the applicant including examining outside sources of funding to assist the applicant’s needs.

94While B.M. does not challenge the power and authority of principals and teachers under the Education Act, she submits that the application of these statutes and regulations in this case had an adverse impact on the applicant and was contrary to the applicant’s rights not to be discriminated against under the Code.

95It is also argued that the respondent’s attempt to show that B.M. failed to co-operate or participate in the accommodation process is self-serving and lacks merit. From the applicant’s perspective, B.M. was a dedicated mother who is committed to her son’s education and had she known about the IPRC process before 2009, she would have consented to it. The applicant states, other than at Elmbank in 2009, there was no evidence from the respondent to establish when the assistance of B.M. was sought and who sought it.

The respondent’s submissions

96The respondent argues first that the Tribunal lacks the jurisdiction to review decisions and suspensions for compliance with the Education Act and that the only appropriate forum to review suspensions is under the Education Act. It was noted that only one suspension was appealed by B.M.

97The respondent further submits that with the exception of one suspension issued at Elmbank on April 22, 2009, the applicant has failed to establish a prima facie case of discrimination in relation to all of the other suspensions because he claimed that he did not engage in any of the alleged conduct and that they were false allegations. In this regard, the respondent submits that the applicant cannot deny behaviours in his evidence and then proceed to argue that the behaviours resulted from a disability as if he admitted doing them. As well, the respondent points out that the applicant never sought accommodation for his disability.

98Alternatively, the respondent states that in each instance, the use of suspensions was an appropriate strategy to manage the applicant’s behaviour and that the disciplinary provisions of the Education Act apply to all students, including the applicant. The respondent also argues that the evidence showed that the applicant was capable of controlling his behaviour and that it is appropriate to use behaviour management strategies which include a range of consequences, including suspension to address and manage behaviour of students with ADHD and ODD.

99The respondent also notes that the applicant now claims that the Board failed to accommodate him by not providing him with a psycho-educational testing prior to 2009. The respondent submits that this allegation is not properly before the Tribunal as it was not raised in any of the Applications. However, the respondent also argues that the evidence shows that at least three principals recommended testing as early as December 2005 but these recommendations were consistently declined by B.M. The respondent also asserts that the evidence demonstrates that each of the four schools in these Applications searched for every possible opportunity to find creative ways to deliver education services to the applicant.

100Finally, the respondent argues that the applicant has raised a new argument that, in addition to accommodating the applicant’s ADHD and ODD, it had the duty in each of the schools to accommodate the applicant’s learning disability even though his learning disability was not diagnosed until the fall of 2009 by Dr. Mallouh. The respondent states that it cannot be held responsible for accommodating a learning disability that did not come to light until months after the filing of the last Application before the Tribunal. The respondent states that it would be unfair and an undue hardship to require it to accommodate a disability that both the applicant and respondent did not know existed.

Scope of Analysis

101Three of these Applications were filed under section 53(3) of the Code which requires that an application must be based on the subject-matter of the original complaint filed with the Human Rights Commission and prohibits an applicant from raising new allegations. In these Applications, the issues raised with respect to each of the schools related solely to whether the applicant had been discriminated and harassed on the basis of disability and race. The fourth Application filed, involving Elmbank, included claims of discrimination on the basis of disability and race plus a claim of reprisal. None of the Applications alleged that the School Board failed to accommodate the applicant by not offering a psycho-educational assessment or IPRC process. In addition, based on all of the evidence, it is clear that while the Board was first made aware of the applicant’s diagnosis of ADHD and ODD in 2005, the determination that he had a learning disability and that he suffered from depressed affect, anger management concerns and poor locus of control did not occur until the fall of 2009 when the applicant was tested by Dr. Mallouh. Given that this determination was made after the filing of the last Application involving Elmbank, it is not reasonable to now allow the applicant to allege that he was not accommodated for his learning disability or that the Board should or ought to have known this to be the case. In addition, the applicant’s argument that he was subject to systemic discrimination as a member of a racialized group will not be considered as this argument was never raised in any of the Applications.

Prima Facie Case

102The onus is on the applicant to establish a prima facie case of discrimination. It is well established that the threshold for finding a prima facie case of discrimination is not high, as discrimination is often not overt. A prima facie case is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant’s favour in the absence of an answer from the respondent; see Ontario Human Rights Commission v. Simpsons-Sears, 1985 CanLII 18 (SCC). Upon establishing a prima facie case, the evidentiary burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that its actions were not discriminatory.

103In each of these Applications, I find that the applicant has met the threshold to establish a prima facie case of discrimination. I do not agree with the respondent’s argument that the applicant’s denial of engaging in much of the alleged behaviour or B.M.’s theory that due to his ADHD and ODD he had no control over his behaviour, prevents the applicant from arguing that he was targeted, harassed and discriminated on the grounds of disability and race. It is not the role of the Tribunal to review the Board’s decisions to suspend or take other disciplinary action other than to determine if the actions of the Board violated the Code. The fact that the applicant denied engaging in most of the alleged behaviour does not negate the fact that that he received suspensions and was subject to many interactions with teachers and administrators at each school for which he claims he was targeted, harassed and discriminated against due to race and disability and which are subject to review by the Tribunal within the context of the Code.

Issues

104The issues that will be addressed are as follows:

(1) Was the applicant’s race a factor in the school board respondent’s decisions to exercise its discretion to suspend him and in determining the length of those suspensions or in its other actions regarding the applicant as raised in the Applications?

(2) Did any of the suspensions or other actions raised by the applicant at Elmbank constitute reprisal?

(3) Was the applicant’s disability a factor in the school board respondent’s decisions to suspend him and if so did it accommodate him to the point of undue hardship or was his disability a factor in other actions regarding the applicant as raised in the Applications?

The Law

a) Statutory Scheme for Suspensions under the Education Act

105Under section 306 of the Education Act, a principal has the authority to suspend a student in a number of prescribed circumstances and in considering whether to suspend a pupil and determining the length of the suspension, must take into account any mitigating factors prescribed by the regulations. For incidents occurring before January 31, 2008, principals were required to implement Mandatory and Discretionary Suspension procedures and were required to consider the following three mitigating factors in order to decide if a suspension was mandatory:

the pupil does not have the ability to control his or her behaviour;
the pupil does not have the ability to understand the foreseeable consequences of his or her behaviour; or
the pupil’s continuing presence in the school does not create an unacceptable risk to the safety or well-being of any person.

106The disciplinary provisions of the Education Act apply to all pupils, including exceptional pupils: Bonnah v. Ottawa Carleton District School Board, [2002] O.J. No. 1253, at paragraphs 21 and 22. In addition, as noted in Schafer v. Toronto District School Board, 2010 HRTO 403, it is not the role of the Tribunal to oversee the implementation of the Education Act, as summarized in paragraphs 15 and 16, and 71 and 72, where it is stated:

However, 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.

Similarly, 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?

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.

Similarly, the Tribunal is not an alternative or appeal body from decisions under the Safe Schools scheme under the Education Act. In order to establish discrimination under the Code, the evidence must demonstrate that the school failed to appreciate or accommodate the impact of the student’s learning disabilities in assessing culpability or in choosing a penalty.

b) Discrimination on the basis of Race

107In the Tribunal’s decision in Phipps v. Toronto Police Services Board, 2009 HRTO 877 (“Phipps”), the relevant principles that apply in cases where an allegation of racial discrimination is made were summarized at para. 16;

(a) The prohibited ground or grounds of discrimination need not be the sole or the major factor leading to the discriminatory conduct; it is sufficient if they are a factor;

(b) There is no need to establish an intention or motivation to discriminate; the focus of the enquiry is on the effect of the respondent's actions on the complainant;

(c) The prohibited ground or grounds need not be the cause of the respondent's discriminatory conduct; it is sufficient if they are a factor or operative element;

(d) There need be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference; and

(e) Racial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices.

Radek v. Henderson Development (Canada) Ltd. (No. 3), (2005), 52 C.H.R.R. D/430, 2005 BCHRT 302 at para. 482; Pritchard v. Ziedler (2007), C.H.R.R. Doc. 07-527 (Sask. H.R.T.).

108At paragraph 17 of Phipps, the Tribunal noted that in many cases involving allegations of racial discrimination, there is no direct evidence that race is a factor, and therefore, the issue of racial discrimination in violation of the Code must be determined in accordance with the following well-established principles applicable to circumstantial evidence cases:

Once a prima facie case of discrimination has been established, the burden shifts to the respondent to provide a rational explanation which is not discriminatory.

It is not sufficient to rebut an inference of discrimination that the respondent is able to suggest just any rational alternative explanation. The respondent must offer an explanation which is credible on all the evidence.

A complainant is not required to establish that the respondent’s actions lead to no other conclusion but that discrimination was the basis for the decision at issue in a given case.

There is no requirement that the respondents' conduct, to be found discriminatory, must be consistent with the allegation of discrimination and inconsistent with any other rational explanation.

The ultimate issue is whether an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondent.

c) Discrimination on the basis of Disability

109To establish discrimination under the Code, it is the applicant’s onus to provide adequate evidence about the identified needs arising out of his disability and specifically how these needs were not being properly accommodated. The duty to accommodate triggers both procedural and substantive obligations under the Code: Baber v. York Region District School Board, 2011 HRTO 213. The analysis is no different than an employer’s obligation to accommodate an employee’s disability. Procedurally, the respondent is under an obligation, once a disability is identified, to determine what kind of modifications or accommodations might be required in order to allow a student to fully participate in school. The substantive duty requires the respondent Board and each individual school, in this case, to make the modifications or provide accommodation necessary in order to allow a student to fully participate, such as academic modifications, accommodation and behavioural strategies, if required, up to the point of undue hardship.

d) Harassment

110In terms of allegations of harassment, the Tribunal’s jurisprudence has articulated the requirements for a finding of harassment in an employment context, which is equally applicable in this case, as follows:

a course of vexatious behaviour;
by an employer, employer’s agent or a fellow employee;
that is known or ought reasonably to be known to be unwelcome; and
is based on a protected ground under the Code.

See Boehm v. National System of Baking Ltd. (1987), 1987 CanLII 8515 (ON HRT), 8 C.H.R.R. D/4110 (Ont. Bd. Inq.).

111In addition to considering whether the harasser knew his or her behaviour was unwelcome, human rights tribunals also consider the perspective of the person alleging harassment when assessing whether a harasser ought reasonably to have known that the comments or conduct at issue was unwelcome. For example, it has been held that whether the harasser ought to have known that his behaviour was unwelcome depends on whether a reasonable person in the position of the person alleging harassment would find such conduct to be unwelcome and, if so, whether reasonable people in the respondent's position would know that to be the case: Ghosh v. Domglas (No. 2) (1992), 1992 CanLII 14247 (ON HRT), 17 C.H.R.R. D/216 (Ont. Bd. Inq.).

e) Reprisal

112Section 8 of the Code states:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

The intention of section 8 is to allow applicants to pursue their rights under the Code without fear of reprisal for doing so. The Tribunal has determined that reprisal must involve a deliberate intent to retaliate and thus this intention must be demonstrated in order to show that an applicant’s rights under section 8 have been violated: Chan v. Tai Pan Vacations, 2009 HRTO 273; Jones v. Amway, 2001 CanLII 26217 (ON H.R.T.); upheld on appeal [2002] O.J. No. 1504.

113As noted in Noble v. York University, 2010 HRTO 878, at paragraphs 32- 34 :

Longstanding human rights jurisprudence provides that where a complainant has established sufficient facts, which if true, would support a finding that the Code has been violated, the evidentiary onus then shifts to the respondent, to provide a reasonable explanation for the impugned conduct. It then falls to the complainant to provide evidence of why the explanation is not credible, or is a simply a pretext. The Tribunal will examine all of the evidence and determine, on a balance of probabilities, whether a violation of the Code, in this case a reprisal, has been proved.

Thus, in a complaint or application alleging reprisal, the following elements must be established:

a. An action taken against, or threat made to, the complainant;

b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and

c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

In addition, the following principles are relevant:

a. There is no strict requirement that the complainant has filed a complaint or application under the Code, and

b. There is no requirement that the Tribunal find the respondent did in fact violate the complainant’s substantive rights to be free from discrimination.

Credibility

114In assessing credibility in this case, I have taken into account the usual tests as outlined in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), which include considering a witness’ opportunities for knowledge, powers of observation, judgement and memory and ability to describe clearly what he has seen and heard. In addition, in cases of conflicting evidence, it is important to consider what story makes the most reasonable sense in terms of consistency and in the context of all of the circumstances. Other factors the Tribunal has applies as relevant in terms of assessing credibility include corroborative evidence from other witnesses, and the extent to which witnesses may have an interest in the outcome of a case, or have a self-interest in testifying for one of the other parties: Shah v. George Brown College, 2009 HRTO 920.

Analysis by School

Westway

115I do not find that the applicant has established that he was discriminated against either on the basis of race or disability while he was enrolled at Westway. The evidence demonstrated that from the initial intake meeting in September 2005, Ms. Beischlag was made aware that the applicant had been diagnosed with ADHD and ODD by the doctor’s note that B.M. provided and that the doctor had suggested psycho-educational testing and use of cooperative problem solving for oppositional behaviour pattern.

116Following this meeting, Ms. Beischlag took immediate steps to implement a range of strategies to assist the applicant, including placing the applicant with an experienced teacher and developing an IEP that was put into place. In addition, Ms. Beischlag sought assistance from the Board’s special education department, through Esther Saltzman, in order to develop specific strategies to deal with academic and behavioural support which were shared with B.M. in a meeting in December 2005. Ms. Beischlag also made an exception for the applicant to be placed in the Special Programs Behaviour Class for the remainder of the 2006 academic year, even though he had not undergone psycho-educational testing, a pre-requisite for placement in that class.

117I also find that Ms. Beischlag offered psycho-educational testing for the applicant in December 2005 and in June 2006. I do not find B.M’s denial of being offered testing for the applicant as credible. B.M. was the one who brought the Doctor’s note to Ms. Beischlag’s attention and the note specifically recommended psycho-educational testing for the applicant. Ms. Beischlag had implemented a number of strategies to assist the applicant that were noted in his IEP and it makes sense, especially after she involved Ms. Saltzman, that she would have wanted more detailed information through a psycho-educational assessment to determine what other academic or behavioural needs the applicant required. During the hearing B.M. expressed her distrust of the Board and of sharing personal information. I find that the statement attributed to her by Ms. Beischlag, that she was concerned about the amount of personal information collected in such testing, is consistent with her views of the Board in general and her desire not to share personal information about either her or the applicant.

118In terms of the specific allegations raised in the Application, I do not find that the applicant was discriminated against in the incident involving comments about his father or that he was required to spend the entire day in the office. The evidence showed that the applicant was not disciplined. I prefer the evidence of the respondent, corroborated by the behaviour log notes, and not disputed by B.M., which established that the applicant was sent to the office and returned to class after he had calmed down.

119I also do not find that the applicant was discriminated against on the basis of race or disability when he received the one day suspension on February 6, 2007, for stealing snacks from other students. Although other students were involved in the snack stealing incident in early February 2007, Ms. Beischlag’s evidence showed that this incident was not the first time the applicant had been involved in such behaviour and that he had been spoken to by her and his mother about the rules regarding snacks, as late as February 2, 2007. In addition, the applicant was extended the opportunity to redeem his record, because the Board agreed to remove the suspension from his OSR at the end of June 2007, if no other similar incidents occurred.

Hilltop

120I do not find that the number of incidents and suspensions that occurred at Hilltop constituted a pattern of harassment or poisoned school environment based on race or disability. Overall, I find the evidence of Ms. Fetterolf and Ms. McBeth Mutter to be credible and reliable. There is also no reason to question their evidence that during the applicant’s time at Hilltop, there were many incidents that occurred for which the applicant was not disciplined and instead were dealt with using a variety of strategies and accommodations made available through his IEP. Furthermore, the evidence was that by October 2007, Ms. McBeth Mutter allocated extra resources to assist and manage the applicant by assigning a behaviour specialist trainee to the applicant, which was not objected to by B.M. The applicant consistently denied that he engaged in the alleged behaviour and when he did recall information, his version of events did not make reasonable sense. B.M. often claimed that the school fabricated much of the stories about her son, but based on all of the testimony, I cannot see why there would be any interest by the teachers or administrative staff at Hilltop to make false allegations about him. Instead, I found that the testimony of the respondent’s witnesses showed how there were serious concerns about the applicant’s own safety and that of other students and about the impact of the applicant’s behaviour on his education because his learning was constantly being interrupted.

121In terms of the “shank” incident, the evidence showed that an investigation was performed by Ms. McBeth Mutter, who determined, despite the applicant’s denial, that he uttered a threat. Although she initially imposed a one-day suspension, she reconsidered her decision after she spoke with B.M. who raised the applicant’s ADHD and ODD diagnosis and changed it to an in-school suspension. I find that in this case Ms. McBeth Mutter considered the applicant’s disability, as required under the Education Act, and applied it as a mitigating factor to reduce the suspension. In addition, B.M. agreed that the change in how the suspension was to be served resolved the issue to her satisfaction; therefore, I question how the applicant can now claim that the suspension was discriminatory.

122In terms of the allegations about the applicant being interrogated by police officers at Hilltop, the applicant’s version of events is not believable. While he recalled that he was called into the office to speak to police, without an adult present, and that he was there for 20 minutes, he stated that he was only asked two brief questions, which is not compatible with a 20-minute interrogation.

123I also do not find that the remainder of suspensions at Hilltop or the Denial of Access on December 10, 2007 were discriminatory. Ms. McBeth Mutter and Ms. Fetterolf had no prior knowledge or details about any human rights complaints from the applicant against the Board and only became aware of B.M.’s theory that the applicant was being targeted because when she briefly mentioned this at a meeting on November 23, 2007. In addition, the evidence demonstrated that Ms. McBeth Mutter considered whether the applicant’s ADHD and ODD were mitigating factors when determining the cause of the behaviour and the type and length of a suspension. For example, in reviewing the incidents leading to the December 3, 2007 suspension and the December 20, 2007 suspension, Ms. McBeth Mutter concluded, based on her experience, that the applicant’s behaviour was not as a result of ADHD and ODD and believed that a two-day suspension would help him improve his behaviour and was the appropriate behavioural management tool in these instances.

124It was also evident that Ms. McBeth Mutter took steps to encourage B.M. to consider that the applicant be referred for a psychological assessment, to Hilltop’s School Safety Team and the Behaviour teacher, all of which were declined by B.M.. Again, I prefer the evidence of the respondent which was corroborated by detailed notes of the November 23, 2007 meeting in which B.M. refused the offers of testing and additional assistance. In addition, there was no dispute that at the return-to-school meeting, following the applicant’s December 10, 2007 Denial of Access, B.M., who had support of an advocate, agreed to a structured day better suited to the applicant’s needs, a protocol for parent-teacher communication and to the creation of safety plan for the applicant (although she denied receiving a copy of it). All of these suggestions for additional assistance for the applicant are not consistent with a pattern of harassment and discrimination, but instead, show that the respondent was attempting to gather more information and provide additional strategies to assist and accommodate him.

Althouse

125I do not find that the applicant has proven discrimination on any of the alleged grounds listed with respect to his enrolment at Althouse. I do not find anything discriminatory about how Mr. Freeman conducted the January 31, 2007 intake meeting or the fact that he asked the applicant how he came to Althouse. As Mr. Freeman explained, he was curious about why the applicant was transferring to the school midway through the academic year, which is a legitimate and reasonable inquiry by a school principal. I also prefer the evidence of Mr. Freeman, which was corroborated by Ms. Newby’s meeting notes, that the meeting was friendly and included a general discussion about the applicant’s strengths and his areas of growth and an overview of school rules.

126I prefer the evidence of Mr. Freeman with respect to the investigation and decision to suspend the applicant on February 1, 2008, for sexual harassment. Both the applicant and B.M. denied that the note attributed to him apologizing for slapping someone by mistake was his. I can see no rational explanation as to why the school or Mr. Freeman would fabricate such a note, and therefore, I believe that the note was written and signed by the applicant. At the time, Mr. Freeman had no knowledge of the applicant’s ADHD or ODD diagnosis and had not even received the applicant’s IEP. Based on his investigation and the fact that this was the applicant’s first day at Althouse, Mr. Freeman decided to issue a one-day suspension for behaviour that should have warranted a more severe response. I also cannot conclude, as B.M. suggested, that the decision to suspend was due to a personal vendetta against the applicant by Mr. Freeman on the basis of race. This incident occurred on the first day of school and Mr. Freeman did not know of and had never met the applicant prior to the intake meeting the day before. The fact that B.M. was not permitted to speak with the parents of the other student involved related to issues of privacy and had nothing to do with race.

127I also do not find that the applicant was harassed or intimidated on the basis of disability or race with respect to being questioned about carrying a cell phone, access to the washroom during recess or whether he was carrying a knife. Ms. Newby offered a reasonable explanation of why she questioned the applicant and that she treated him like any other student in the school who may not have been following school rules. B.M. also agreed that the applicant was not denied access to the washroom and that he was questioned because he was not carrying a hall pass as required by school rules. In terms of the knife search, B.M. testified that the applicant was forced to empty his pockets while Ms. Newby stated that she asked him to empty his pockets. I prefer the respondent’s version, that he was not touched by Ms. Newby, over the applicant’s recollection that Ms. Newby placed her hands in his pockets.

128I can find no basis to determine that the applicant was harassed, intimidated or discriminated against by his teacher Mr. Nazarian. The evidence was that proximity to the teacher was a specific accommodation in the applicant’s IEP and that was the reason his desk was next to Mr. Nazarian’s. As well, Mr. Nazarian pointed out that the applicant, like other students, participated in all classroom activities and group work allowing him to move throughout the room. I also do not believe the applicant’s claim that Mr. Nazarian stated that he didn’t want the applicant in his classroom. First, the applicant was not consistent about who made this remark. Second, it was obvious from the Althouse witnesses’ testimony in their entirety that even though the applicant’s behaviour was challenging, there was nothing in the evidence to show that Mr. Nazarian or even Mr. Freeman was critical of the applicant.

129Reviewing the applicant’s overall experience at Althouse, it is evident that the school teachers and administrators made efforts to accommodate the applicant both from behavioural and academic perspectives as noted in the list of accommodations and strategies listed earlier at paragraph 52 of this Decision. While B.M. did not specifically ask for specific academic accommodations, these were put into place by the School in an effort to assist the applicant, who was struggling academically. In addition, each of the witnesses from Althouse noted that, despite their efforts, B.M. was generally not cooperative and was accusatory. She even admitted that she didn’t trust Mr. Freeman from the start, which likely set up a pattern of distrust of most actions taken by the school. In addition, while it is understandable that it might have been very difficult for her to receive calls from the school at work, B.M.’s refusal to take phone calls, except in emergencies, made it difficult for the school to deal with the applicant. As well, the school was not able to effectively communicate with B.M. about how to proceed and receive her input in terms of assisting the applicant following a number of suspensions since she did not attend the re-entry meetings.

Elmbank

130I find no basis to conclude that the suspensions or actions taken at Elmbank constituted a pattern of harassment and discrimination or were a reprisal because of the applicant’s previous human rights complaints. Although B.M. told Ms. Volunge, during their first meeting, that she believed that the applicant had been targeted previously because of filing other human rights complaints, there was no evidence that either Ms. Volunge or Mr. Edwards had prior knowledge or any details about other human rights matters or lawsuits. The fact that B.M. believed that her son continued to be targeted is insufficient to prove reprisal under the Code. Having reviewed all of the evidence, it is clear that all of the actions taken with respect to the applicant at Elmbank related directly to issues with his behaviour and not to previous human rights complaints against the School Board.

131The evidence was clear that B.M. did not trust or like Mr. Edwards when she met him during her first meeting with Ms. Volunge and that she believed that Mr. Edwards had been placed at Elmbank to harass the applicant. Mr. Edwards had no prior knowledge of the applicant or B.M. and was assigned as Vice-Principal through the normal course of School Board Vice-Principal selection. Again, other than B.M.’s belief, there was no evidence to support her assertion about Mr. Edwards.

132I do not find that Mr. Edwards engaged in harassment or discrimination of the applicant. The discussion in September 2008, when Mr. Edwards asked the applicant to rate his day, cannot reasonably be viewed as discriminatory. I believe Mr. Edward’s explanation that the remark “kiss my feet” was his attempt of trying to phrase things in a casual way so that the applicant might better relate to him. In terms of the context of the conversation, I find it reasonable that, as Vice-Principal, Mr. Edwards wanted to chat with the applicant about how things were going from the applicant’s view, given the behavioural concerns that came to light within his first few weeks at Elmbank.

133I also find that the applicant has not proven the allegations against both Ms. Woolcock and Mr. Persaud. Based on Ms. Woolcock’s testimony, she was performing her role as a guidance counsellor trying to connect with and assist the applicant, which I believe to be the case. She had the authority to review the applicant’s OSR and used the example of the good report card as a positive strategy with the applicant. There was also no credible evidence of Ms. Woolcock constantly pulling the applicant out of class, but instead the evidence showed that after B.M. met with her, the applicant refused to speak to Ms. Woolcock. Furthermore, Ms. Woolcock was then asked not to deal with the applicant by Ms. Volunge, which limited any guidance counselling interaction with him. In terms of interactions involving Mr. Persaud, the evidence established that Mr. Persaud applied various accommodations and strategies in the applicant’s IEP in order to engage and manage his behaviour and learning. There was no direct evidence from the applicant or B.M. pointing to any specific examples of harassment or targeting by Mr. Persaud, and as a result, there is no basis to support the allegations raised against him.

134There was no credible evidence that the applicant was treated differently with respect to his allegations that he was slapped by another student. The respondent’s evidence was that nothing was reported by the applicant but that when the issue was raised by B.M. two weeks later, Ms. Volunge took steps to investigate and found no information. She also attempted to speak with the applicant without success, which left her with nothing to investigate. In hindsight, it may have been better for Ms. Volunge to have reported back her findings to B.M.; however, there was nothing that occurred in terms of her investigation that can be characterized as discriminatory within the meaning of the Code.

135I am also satisfied that the applicant has not established that the suspensions he received at Elmbank either constituted a pattern of harassment or reprisal. In its totality, the evidence showed that there was generally good communication between Ms. Volunge and B.M. and that Ms. Volunge was sensitive to the applicant’s needs, in part, because of his ADHD and ODD. I also believe that B.M. made efforts to work with Ms. Volunge in terms of making suggestions to assist the applicant with behavioural challenges, including asking if the applicant could serve a suspension by attending the in-school suspension program rather than being sent home. Ms. Volunge also implemented many strategies to assist the applicant academically and behaviourally as noted in the list at paragraph 62 of this Decision, most of which were agreed to by B.M. in her testimony. As well, even after B.M. became frustrated and less inclined to work with the school, Ms. Volunge continued to try to meet with B.M. to review the applicant’s ongoing challenges and to offer other suggestions, such as the additional breaks offered to the applicant and agreed to by B.M. in the meeting on April 17, 2009. All of this evidence does not demonstrate a pattern of harassment or reprisal, but rather shows how Ms. Volunge was trying to assist the applicant.

136In contrast, the applicant’s testimony about Elmbank was not credible. He disputed everything, except his involvement in the fight on April 22, 2009. He stated, in the face of clear documentation in his OSR and testimony from all of the witnesses from Elmbank, and even some of B.M.’s evidence that showed numerous accommodations and strategies, that the school didn’t do anything to assist him or that he wasn’t in the HSP class. For example, he claimed that he never attended mediation with Mr. Gilbert, the librarian, despite the fact that there were four pages of notes made by Mr. Edwards detailing the mediation meeting with Mr. Gilbert on December 4, 2008. The applicant also displayed inconsistency in his testimony that the school didn’t do anything for him but then during his cross-examination evidence he admitted that he was given a stress ball and that as an incentive for good behaviour he was awarded with extra basketball time with friends. He also agreed that Mr. Russell, who he liked, was assigned to supervise him. His evidence about not receiving homework packages or suspension letters was also questionable compared to the respondent’s witnesses’ testimony that the applicant refused to take the suspension letters home and that a homework package was always provided and if not taken was either sent by registered mail or made available for pick up. In terms of the investigation leading to the April 22, 2009 suspension, the applicant claimed that Mr. Persaud did not act as a scribe and that the signature on the witness statement was not his. Again, this evidence is not believable as there was evidence by Mr. Persaud that he would regularly scribe for the applicant as an accommodation and he gave detailed evidence about how, after the fight, he sat beside the applicant outside of the office on April 22, 2009, and tried to help him calm down and offered to be his scribe.

137In terms of the suspensions on December 17, 2008, March 27, 2009, April 22, 2009 and June 4, 2009, I find that Ms. Volunge and Mr. Edwards carefully reviewed and investigated each incident taking into consideration all mitigating factors, including the applicant’s diagnosis of ADHD and ODD and accommodations already in place in the applicant’s IEP. Both Ms. Volunge and Mr. Edwards noted that they had implemented a progressive discipline approach which included alternative strategies such as counselling, goal setting, mediation, and in school detention before resorting to suspension. Based on her extensive experience in dealing with students with ADHD and ODD, I accept that Ms. Volunge was able to fairly assess the applicant’s conduct and conclude that he was able to control his behaviour and judgement. When she did believe that the applicant’s ADHD may have been a factor that made it difficult for the applicant to remove himself from the fight on April 22, 2009, she applied this as a mitigating factor not to issue a lengthier suspension.

138Ms. Volunge also noted that she did consider one of B.M.’s suggestions to place the applicant in the in-school suspension class housed at Elmbank, but explained that the program was only for suspensions exceeding five days and that she had no jurisdiction over that program. She also stated that she had tried having the applicant visit this class in the past, but that he would never stay and therefore, she believed that using the in-school suspension program was not a viable option for the applicant. She also remarked that there was improvement in the applicant’s behaviour following periods of suspension and that she believed that he wanted to improve and thus she felt the suspensions had been an effective tool.

139Ms. Volunge’s assessment of the applicant’s ability to control his behaviour was also consistent with the evidence of Dr. Mallouh. I do not agree with the applicant’s conclusions attributed to Dr. Mallouh’s testimony as they do not reflect the evidence that was given. For example, the applicant stated that Dr. Mallouh concluded that the various schools’ failure to take appropriate actions between grades 4 and 8, may have led to the escalation of the applicant’s “aberrant” behaviour. What Dr. Mallouh did say was that he was surprised that the applicant had not been brought to him sooner and that he couldn’t believe that B.M. had not come to the schools to ask for assistance. The applicant also stated that all of the respondent’s witnesses including Dr. Mallouh agreed that the behaviours for which the applicant was suspended are consistent with behaviours of individuals who are suffering from ADHD and ODD and learning disabilities and that the actions of the applicant mirrored those of someone with ADHD and ODD who unconsciously engages in such behaviour. Again, this is not an accurate description of the evidence. None of the respondent’s witnesses, other than Dr. Mallouh, were in a position to give a psychiatric opinion about the applicant’s behaviours. While most agreed with the fact that the applicant exhibited characteristics such as anger, defiance and agitation, they were not able to make a definitive link as to why the applicant behaved in the manner he did. When Dr. Mallouh was asked about a number of behaviours such as persistently leaving a classroom, fighting, hiding and stealing, he stated that they are not necessarily attributed to ADHD or ODD and stated that such behaviours could be a result of conduct disorder or depression. The only behaviour that he agreed might be a manifestation of ODD was swearing and he commented that this could be dealt with through behavioural management and medication. Dr. Mallouh also stated that, based on his assessment of the applicant, he believed that the applicant had the ability to control his behaviour and that some of the behaviours he exhibited were more likely avoidance behaviour due to other underlying issues that may have been caused by frustration resulting from his learning disability or his depressed affect.

140Finally, the most telling evidence of assistance offered to the applicant was Ms. Volunge’s two offers in June 2009 to have the Board pay for and provide the assistance of a Child and Youth Worker Counsellor on a one-to-one basis and to invite the applicant to attend the summer youth six week program, again paid for by the Board. Although both offers were declined by B.M., I find that Ms. Volunge’s evidence showed additional efforts and the great lengths that she went to in finding creative solutions to manage and assist the applicant.

Conclusion

141In each of the Applications, I have determined that the applicant has not shown that the respondent has violated the Code on any of the alleged grounds. Reviewing the evidence as a whole, other than B.M. asking for the applicant to serve some of the suspensions in school rather than at home, there was no direct evidence of what accommodation she was seeking on behalf of the applicant. The evidence was abundant in showing how each school tried to work with the applicant and B.M. to ensure accommodations were made in his IEP’s and that a number of other creative strategies were used to deal with the applicant. While it was clear that B.M. is dedicated to her son’s education, her conduct from time to time was not cooperative, such as not attending re-entry meetings, refusing to be contacted other than by email or accusing schools of fabricating stories about her son, and this conduct made it difficult, at times, for the various schools to work with her as a partner in the applicant’s education.

142Like all students, the applicant is not immune to the provisions of the Education Act relating to behaviour and discipline. In each case, I have determined that the administrators in each of the schools considered all mitigating factors, including the applicant’s ADHD and ODD, in determining what the appropriate tool for discipline was and that through this process complied with the provisions of the Code. I am satisfied that all of the schools demonstrated that they had a credible, rational and non-discriminatory explanation for the actions and decisions that were made with respect to the applicant.

143Accordingly, all of the Applications are dismissed.

Dated at Toronto, this 28th day of September, 2012.

“Signed by”

Dale Hewat

Member