Contini v. Rainbow District School Board, 2012 HRTO 295

Human Rights Tribunal of Ontario

B E T W E E N:

Loriann Contini

Applicant

-and-

Rainbow District School Board

Respondent

DECISION

Adjudicator: Alison Renton

Date: February 14, 2012

Citation: 2012 HRTO 295

Indexed as: Contini v. Rainbow District School Board

WRITTEN APPEARANCES

Loriann Contini, Applicant ) Self-represented

Rainbow District School Board, Respondent ) Brenda Bowlby, Counsel

1The applicant filed an Application with the Tribunal under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of her disability in goods, services and facilities. Specifically, the applicant alleges that the respondent’s failure to provide bus transportation for her school-aged children from their home to their school because of her disability is discriminatory against her.

2The respondent filed a Response as well as a Request for Order During Proceedings (“RFOP”) requesting that the Tribunal dismiss the Application on the basis that it is outside the Tribunal’s jurisdiction as transportation services for the applicant’s children is not a service that is provided to the applicant.

3The Tribunal issued an Interim Decision, 2010 HRTO 214, to address the issue of whether the Tribunal has jurisdiction over the issues raised in the Application and specifically whether the respondent provides “services” within the meaning of the Code to the applicant. The Tribunal issued an Interim Decision, 2011 HRTO 1340 (“the 2011 Interim Decision”) finding that there was a service relationship between the applicant and the respondent because of the specific language used in the respondent’s policies pertaining to transportation. Accordingly, the Application was allowed to continue.

4At paras. 34-36 of the 2011 Interim Decision, the Tribunal stated:

However, to be clear, the determination that the Application can continue is not a determination that the Application will ultimately be successful. Although no determination has yet been made on the merits of the Application, the applicant has a hurdle to meet arising from the facts of this case. She admits that she enjoys the benefit she seeks from the respondent – having her children transported to school. Her husband, with whom she lives, is a teacher at the school and drives their children to school. The applicant will therefore have to establish how the respondent’s failure to provide this service discriminates against her by having an adverse impact on her, an essential requirement in proving discrimination, in the circumstances of this case.

In Battlefords and District Co-operative Ltd. v. Gibbs, 1996 CanLII 187 (SCC), [1996] 3 S.C.R. 566 at para. 20, the Supreme Court of Canada addressed what it called “the appropriate definition of discrimination”, and quoted with approval from pp. 173-75 of Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143:

What does discrimination mean? The question has arisen most commonly in a consideration of the Human Rights Acts and the general concept of discrimination under those enactments has been fairly well settled. There is little difficulty, drawing upon those cases in this Court, in isolating an acceptable definition…. I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed on others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.

The Ontario Court of Appeal in Ontario (Disability Support Program) v. Tranchemontagene, 2010 ONCA 593 at para. 109 stated that “…the onus of prov[ing] discrimination on a balance of probabilities remains on the claimant throughout”. It also stated, at para. 104:

However, in my opinion, the goal of protecting people from arbitrary or stereotypical treatment or treatment that creates disadvantage by perpetuating prejudice is actually incorporated into two stages of the prima face case analysis: i) determining whether the treatment in issue truly creates a disadvantage; and ii) determining whether the protected ground or characteristic truly played a role in creating the disadvantage.

5In the 2011 Interim Decision, the Tribunal directed the applicant to provide written submissions to the Tribunal on the following issue:

a) how do the respondent’s policies disadvantage or have an adverse impact on the applicant in the circumstances of this case.

6The applicant was given the option, if she preferred, to provide those submissions orally instead of in writing and if so a conference call would be scheduled. The Tribunal stated that it did not require submissions, at this point, from the respondent.

7The applicant provided written submissions and as such the need for a conference call hearing was not necessary.

The Applicant’s Position

8The applicant has two children who, at the time of filing her Application, were in Grades 3 and 4, and who attend school with the respondent school board. While the applicant lives close to the school, because of her disability, multiple sclerosis, she is unable to take her children to school herself. Because of the physical proximity of their house in relation to the school and the age of the children, as of the filing of the Application, the children are not entitled to bussing services because they do not meet the requirements of the respondent’s transportation policy. The applicant had made special requests to the respondent for her children to be bussed to school. For several years the respondent had granted this request, but in August 2009 it refused to grant the request. The applicant’s husband, who is a teacher at the school at which the children attend, drives them to school.

9The applicant submits that the respondent’s policy on bussing is discriminatory against her. She states that despite the physical proximity of her house to the school and her husband driving the children to school, she wants to get her children ready for school and watch them get on and off the bus so that she can meaningfully contribute to her family. She alleges that her self-worth and dignity are continually attacked within society and that the respondent has not taken into account the special needs of persons with disabilities in denying her request for bussing services. She asks that the respondent’s policies take into account people with mobility disabilities.

10In the written submissions, the applicant writes:

According to the school board: Since I have a husband, I am no longer an individual and do not require the rights as an individual. All I need to do is get my husband to remove, shift, or convey any blockages preventing me from progressing. Also, since the School Board’s policy is based on the average person (no disabilities), their policy is fair in their opinion. “Fair” to them, means everyone gets treated the same, however, an individual’s needs are not considered.

The Respondent’s Position

11The respondent has not been asked to respond to the applicant’s written submissions. However, it has filed a fulsome response, which contains submissions regarding the issues I am presently considering.

12In its Response, the respondent submits that there is a sliding scale in providing transportation services to students, based on a child’s age and the walking distance between his/her home and the school. The older the child, the further the distance required between the child’s home and the school in order for bussing to be provided. Because of the age of the applicant’s children and the proximity of their home to the school, they no long qualify for bussing. The respondent submits that the applicant is seeking special consideration that other parents do not receive and is not claiming that she is being discriminated against because other parents receive a benefit that she does not receive.

13While there is a legal obligation to accommodate the needs of a child with a disability for transportation purposes, there is no legal obligation, the respondent submits, for it to provide transportation services that benefit a parent such as the applicant. In addition, the applicant’s husband, who is a teacher at the school, is equally responsible for the transportation of their children to school and in fact drives them to school.

The Code Provisions

14Sections 1 and 11 of the Code provide:

1. Every person has a right to equal treatment with respect to services, good and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

11.(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

(2) The Tribunal or a court shall not find a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

15“Disability” is defined, in section 10(1) of the Code as:

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device…

Analysis

16It is clear from the Tribunal’s jurisprudence that in order for an applicant to be successful, she must show that it is more likely than not that discrimination occurred, whether it be direct discrimination or discrimination that can be inferred from the facts before the Tribunal. See Arias v. Centre for Spanish Speaking Peoples, 2010 HRTO 1818. An applicant bears the onus of proving discrimination on a balance of probabilities. See Iqbal v. Inscape Corporation, 2009 HRTO 1189 and the Ontario Court of Appeal’s decision in Tranchemontagne, supra.

17Discrimination can be direct or indirect. Direct discrimination occurs when an individual is treated adversely because of a personal characteristic covered by the Code such as disability. See Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143.

18Indirect discrimination, as provided for in section 11 of the Code, recognizes the reality that discrimination can occur when neutral rules that do not appear to be discriminatory have a disproportionate and adverse impact on a group identified by one of the personal characteristics covered by the Code. An example of indirect or “constructive discrimination” (as it is referred to in the Code) is the case of British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”), in which an aerobic standard that disproportionately prevented women from obtaining firefighter jobs was found to be discriminatory. See also Ontario Human Rights Commission v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 in which the requirement to work Friday evenings was found to be discriminatory for an employee who, for religious reasons, was prohibited from working on Friday evenings.

19The respondent’s policy provides bussing, for elementary schools, as follows:

Kindergarten students – 0 km from the school they have to attend

Grades 1 – 3 students who live beyond a distance of – 1.0 km from the school they have to attend

Grades 4 – 8 students who live beyond a distance of – 1.6 km from the school they have to attend

20As I have indicated, the applicant’s children were in Grades 3 and 4. They reside less than one kilometer from the school they attend. The respondent has applied its transportation policy and has determined not to provide bussing services to the applicant’s children.

21In the Response, the respondent does not dispute that the applicant has a disability within the meaning of the Code. Given her medical condition, multiple sclerosis, I accept that the applicant has a disability within the meaning of the Code.

22On the facts of this case, I find that the applicant was not directly discriminated against by the respondent. There is no allegation that the transportation policy is, on its face, discriminatory and I find that it is neutral on its face. Further, there is no basis to conclude that the applicant’s disability was a factor in the respondent’s decision not to provide bussing to her children.

23I accept the respondent’s explanation that it applied its policy and denied the applicant’s request to have her children bussed because of a combination of her children’s ages and the proximity of their residence to the school. The respondent did not tell the applicant that it would not bus her children, for example, because the applicant has a disability and the applicant did not make this allegation. This is different from other situations in which the Tribunal has found direct discrimination because of disability. See, for example, Wozenilek v. 7-Eleven, 2009 HRTO 926, in which the Tribunal found that the respondent discriminated against an applicant on the basis of disability by failing to provide an accessible entrance into its store.

24Although the applicant did not clearly frame the issue in her Application as constructive discrimination, I have also considered this issue and have concluded that the respondent did not indirectly or constructively discriminate against the applicant. In my view, the Application can reasonably be understood to include a claim for constructive discrimination and, in the circumstances of this case and given my conclusions, there is no prejudice to the respondent in deciding this issue.

25In determining the issue of constructive discrimination, I have considered whether the respondent’s bussing policies, which are neutral on their face in that they do not factor in Code-related grounds, have a discriminatory impact on the applicant, a disabled parent. In this case, I cannot conclude that the bussing policy indirectly discriminates against the applicant.

26The Tribunal and the Courts have recognized, on a number of occasions, discrimination and obstacles which individuals with physical and mobility disabilities face in society. See, for example, Wozenilek, supra, Turnbull v. Famous Players Inc., 2001 CanLII 262; Council of Canadians with Disabilities v. VIA Rail Inc., 2007 SCC 15, [2007] 1 S.C.R. 650, and Ontario Human Rights Commission v. Lepofsky, 2005 HRTO 36.

27While I accept that the applicant has mobility issues that prevent her from escorting or transporting her children to school, the applicant has not been able to show that she has been adversely impacted by the application of the respondent’s bussing policy. The applicant states that she wants to contribute to her family by getting her children ready for school, including seeing them picked up by the bus. However, the applicant has not been able to prove that she has been adversely impacted by the respondent’s bussing policy given the age of her children and the proximity of their house from the school.

28I understand that her preference is for her children to be bussed, rather than to accept other options that are available to her including a “walking school bus” in which the children walk to school together or with a group of other students supervised by a parent, or the applicant’s husband, a teacher at the same school, driving the children to school. However, the applicant has not shown that the lack of bussing for her children has adversely impacted her because of her disability. There is no material difference between a bus pulling upside the applicant’s home, the walking school bus or the applicant’s husband driving the children to school in terms of the applicant’s abilities in getting her children ready – the applicant’s involvement in getting her children to school ends as her children walk through the door and is not materially different based on their means of transportation.

29I also note that there are no allegations that the applicant’s children had specific needs themselves or were unable to walk to school as the reason for the applicant’s request that the respondent bus her children. There is also no allegation that, but for bussing services provided by the respondent, the children would have difficulty getting to school.

30The applicant argues that, because of the respondent’s bussing policy, she and her children must rely on the applicant’s husband to transport them to school. The applicant argues that this reliance makes her feel less worthy as a parent and takes away from her personal dignity. In the circumstances of this case, however, there is no basis to conclude that the only means of getting the children to school is for the applicant’s husband to drive them, nor is there any basis to conclude that this places the applicant in a situation where she could reasonably feel less worthy as a parent. As I have indicated, there are other ways the children could get to school (the walking school bus, for example) and there is no reason the applicant cannot get her children ready for school in the absence of bussing arrangements.

31There is nothing to indicate that as a disabled person in these circumstances, the applicant is adversely impacted because of her disability by the respondent’s bussing policy which stops bussing children to school at Grade 3 when their residence is 1.0 km away from the school or in Grade 4 when their residence is 1.6 km away from the school.

32The Application is therefore dismissed.