J.O. v. London District Catholic School Board, 2012 HRTO 732

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

J.O. by his Next Friend E.B.

Applicant

-and-

London District Catholic School Board and Southwestern Ontario Student Transportation Services

Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: April 13, 2012

Citation: 2012 HRTO 732

Indexed as: J.O v. London District Catholic School Board

APPEARANCES:

J.O, by his next friend E.B., Applicant ) E.B., Representative

London District Catholic School Board and )

Southwestern Ontario Student Transportation )

Services, Respondents ) M. Paul Morrissey, Counsel

1This is an Application filed on October 27, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”) alleging discrimination in goods, services or facilities because of family status and marital status.

2The applicant in this Application is J.O, represented by his next friend E.B., his mother. At the time material to this application J.O. was a student at an elementary school in the London District Catholic School Board (the “Board”). E.B and T.O., J.O.’s father, are divorced and have joint custody of J.O. and his siblings. The applicant alleges that the Board and the Southwestern Ontario Student Transportation Services (“STS”) discriminated against him in respect of services when it declined the request to allow J.O to take different school busses to his parents’ respective homes on alternating weeks.

3E.B. filed the Application on behalf of J.O. under section 34(5) of the Code and complied with the requirements for filing an Application on behalf of another person. In an unusual turn of events, however, the Tribunal and the parties treated the Application as if E.B. was the applicant throughout the proceeding. The Tribunal detected this oversight after the conclusion of the hearing. The Tribunal therefore asked the parties for submissions regarding whether the Tribunal should continue to treat E.B. as an applicant, along with J.O., since the Application alleged discrimination against her as well as J.O. and the parties’ approach to the hearing appeared to address the matter as if both E.B. and J.O. were applicants. After receiving the parties submissions and given E.B. and J.O. would seek the same remedy, the most just, fair and expeditious procedure is to treat J.O. as the sole applicant.

Agreed Facts

4The hearing of this matter took place on November 1^st and 2^nd, 2011 in London Ontario. At the outset of the hearing the parties agreed to several facts, as follows:

1. E.B. and T.O are the parents of J.O.

2. E.B. and T.O are divorced and live in separate residences. Both of their residences are located within the normal bussing zone or territory for J.O.’s elementary school;

3. Pursuant to an order of the Ontario Superior Court of Justice Family Court (the “Court”), dated June 4, 2002 that reflected the parents’ agreement, J.O. lived with his mother during the school week;

4. On or about January 19, 2007, J.O.’s parents requested an alternating schedule for the school busses taking J.O. to and from school, i.e., to take a school bus route to his mother’s home one week and a different route to his father’s home the next week throughout the school year. The respondents denied the request;

5. In May 2007, this custody arrangement changed and J.O. and his siblings were to live with each parent on alternate weeks, which is reflected in an order of the Court, dated May 11, 2007 as agreed by the parents;

6. Notwithstanding this denial, J.O. did take different busses on alternate weeks, from approximately January 2007, apparently without the respondents’ knowledge;

7. The Board eventually discovered J.O.’s practice of taking different busses on alternate weeks and asked E.B. to have J.O. stop this practice on several occasions (March 2008, fall 2008, January 2009 and fall 2010);

8. In January 2009 J.O.’s parents requested an exception or accommodation regarding school bus services for J.O. with the assistance of the Human Rights Legal Support Centre. The respondents denied the accommodation request, citing the discretionary nature of school bus services, safety, funding and operational concerns.

APPLICANT’S EVIDENCE

5In January 2009, J.O. was in grade 6 and attended an elementary school within the London District Catholic School Board (‘the Board”). E.B. testified that J.O. had “de facto” been alternating school bus routes each week to travel to his parents’ homes (which are about five kilometres apart), depending on with which parent he was residing. The principal of the school advised E.B. that this practice was not authorized and indicated that E.B. should seek accommodation by submitting a request in writing. The principal further requested that E.B. speak to or send a written submission to Mark Weaver, the Board’s Chief Information Officer and Assistant Superintendent of Business. E.B. contacted Mr. Weaver seeking accommodation by allowing J.O. to continue to alternate school bus routes, which he refused. The Human Rights Legal Support Centre also contacted Mr. Weaver on E.B.’s and J.O.’s behalf to advocate in favour of the requested accommodation, but the Board’s position did not change.

6E.B. acknowledged in cross examination that the custody order currently in place incorporates a great deal of flexibility and permits her children to choose different arrangements, including reverting to the previous arrangement set out in the court order of June 4, 2002. E.B. is also a teacher with the Board and teaches junior and senior kindergarten, grade 6 and 7 English and English as a Second Language to grade one students.

7She agreed that safety is a primary concern when moving large groups of children and that organization is important. She did not agree that individualized treatment of students was unmanageable. In this regard, she pointed to some creative solutions teachers have employed to organize students and ensure they get on the correct busses, including lists, wall charts, putting “bus tags” on students, pairing young students with older students and lining students up in accordance with bus arrangements. Teachers may also escort students in senior and junior kindergarten and grade one to their busses. She acknowledged that teachers’ practices in this regard are not necessarily consistent, but could be made uniform if a policy were developed.

RESPONDENT’S EVIDENCE

School Bus Operations

8Maureen Heath is the General Manager of STS. She testified that STS is the transportation consortium for two school boards in the London area, the respondent Board and the Thames Valley District School Board, which was created in September 2008. STS has a board of directors comprised of two senior administrators from both boards to whom Ms. Heath makes recommendations regarding STS policies. The STS provides service in Middlesex, Elgin and Oxford Counties as well as the City of London, a large area covering 7,282 square kilometres. In that area, STS serves 223 schools (185 elementary schools and 38 high schools) with a total student body of about 46,500 students. Approximately 20,500 of the students attend elementary schools (junior kindergarten to grade 8).

9The STS has about 15,000 school bus stops and uses nine bus companies which employ about 1,500 drivers to provide school bus services (including both regular and spare drivers). The STS operates both urban and rural routes and the earliest pick up time in the STS system is 6:13 a.m. on a rural route. Ms. Heath explained that the routes in question in this Application, in Delaware Ontario, are rural routes. STS provides both “regular” and “specialized” service. Regular service involves the traditional yellow school busses used by most children. Specialized services are provided to students with special needs utilizing a combination of vans and wheel chair accessible vehicles. The average urban and rural bus routes are approximately 25 minutes and 35 minutes, respectively. Given the vast geography STS serves and some special cases, some routes are significantly longer. The longest regular route is approximately one hour and fifty seven minutes long and the longest specialized route is about one and a half hours. With the implementation of full day kindergarten, students as young as three years old ride on school busses in the respondents’ system.

10Ms. Heath explained that STS plans routes based on student data provided by the school boards. The school boards inform STS where the students live, their emergency contacts, the schools to which each student is registered and any other salient details. STS uses computer software to design the routes. STS then disseminates the routes to the school bus companies which provide it to their drivers. The main difference between urban and rural routes is the distance the students must travel from their homes to their school bus stops. On urban routes, elementary students travel up to 800m and secondary students up to 1.6km to their stops. On rural routes, the respective distance travelled to bus stops for elementary and secondary students is up to 400m and 800m.

11Ms. Heath explained that the school bus routes and schedules are determined in late August or early September each year based on the students registered at each school. The school bus schedules are then communicated to parents. Ms. Heath noted that registration can change at the start of the school year and throughout the school year as students join or leave schools, which results in changes to the bussing routes and schedules.

12Mark Weaver is the Chief Information Officer and Executive Officer of Planning and Development for the Board and is one of the Board’s directors with STS. Prior to the creation of STS, Mr. Weaver was responsible for transportation for the Board, from approximately January of 1991. Mr. Weaver explained that pursuant to the Education Act, the provision of school bus service is discretionary, but the Ministry of Education requires all school boards that provide school bus service to belong to a consortium, such as STS. The Ministry of Education provides funding for transportation services based on formula, which is based on several core assumptions, including that service is based on a fixed schedule, boundaries are defined and there are a fixed number of days.

13From an administrative perspective, Mr. Weaver noted that STS employs a fixed schedule service that has been designed “from the ground up” based on bus design and the requirements of the Highway Traffic Act and the Education Act. He observed that school bus transportation is somewhat like public transportation and is not designed to provide taxi like service. In Mr. Weaver’s view, the core in providing school bus service is consistency. The resources allocation to administer school bus services is based on a fixed schedule service and individual schedules are beyond the scope of the system.

The Primary Address Policy

14Ms. Heath explained that the STS has a Primary Address Policy. Parents select and register a primary address. STS determines whether students are eligible for transportation based on the distance between their primary residences and their schools. STS also has an Alternate Address Policy, pursuant to which parents may elect to have their children picked up or dropped off at a location other than their primary address and such a location may not necessarily be near their primary address.In other words, children may be picked up at the primary address and dropped off at the alternate address. The alternate address must, however, be used consistently Monday through Friday, every day of the school year, regardless of the reason for the accommodation request.

15Ms. Heath testified that the reason for such unswerving consistency is safety. She stated that STS operates 1118 bus routes and if they started to allow for deviation the opportunity for a lost child is greater. STS’ design values or procedures are designed to mitigate risk; therefore, they do not allow for alternating schedules to ensure the safety and security of the system.

16Ms. Heath explained that STS has changed its policies somewhat since this Application was filed in October 2009. In October 2009, the consortium was still new and did not have policies of its own, but operated under the policies of the participating school boards. In February 2011, the board of directors considered the circumstances regarding joint custody arrangements and concluded that alternating schedules would be permitted for high school students, provided there is a vacant seat on the bus on alternate weeks (i.e., the bus not taking the student to his or her primary address). In April 2011 after further discussion, the decision was taken to further reduce restrictions such that high school students were allowed to take other school busses to suit their circumstances if a seat is available on their bus of choice. Ms. Heath agreed that there was always a vacant seat on the busses. This policy change was limited to secondary students because high school students are better able to manage their own schedules and be responsible to board the correct busses. Having said that, Ms. Heath noted that issues can still arise and she cited an example when a grade 9 student chose to go to a friend’s house rather than take the bus home. There was no indication that the student’s safety was compromised.

17J.O. was not in a primary grade when the incidents described in the Application occurred and Ms. Health allowed that senior elementary students present less of a concern. She testified that STS struggled with issue of how far to extend the policy change allowing more flexible bussing options. Ultimately, the consortium concluding that allowing more flexible bussing to only some elementary students would create another subset of problems with respect to siblings attending the same school who may be split if younger siblings were not allowed to alternate busses. STS did not want older students to act as custodians and Ms. Heath noted that older siblings might not always be available due to illness or other activities. Consequently, the consortium took the decision to extend more flexible bussing options only to secondary students. While STS tries to reflect the community to the extent possible, its primary concern is safety. In Ms. Heath’s view STS cannot offer a taxi style service and maintain safety. Ms. Heath acknowledged, however, that there is no consistent practice regarding the transportation of students subject to joint custody arrangements across the province. Other school boards / transportation consortia do provide more flexible bussing arrangements, including alternating schedules, but there is no consistent best practice. The STS decided not to assume the risk of offering greater flexibility to elementary students.

Risks Posed by Accommodation

Bus Route Changes and Inconsistency

18According to Ms. Heath, the biggest concern raised by alternating schedules on rural routes is the potential timing issues. Changing routes impacts all of the students and their families on the route and adding an additional stop every other week could add considerable time to the route. Ms. Heath also noted that families plan around school bus schedules and that changes to the schedule were usually negatively received. Students with special needs, who are sometimes integrated into regular service busses, have particular need for structured schedules.

19Further an alternating schedule would present a greater risk that children would get off at the wrong stop and she noted that while small children are met at their stops, older children are not and there is no way to know if there is someone to receive them. In this regard, Ms. Heath provided an example of a seven year old student who was not met by a parent because his father forgot it was his turn to meet him. The child remained on the bus and was reunited with his family later that evening. In another example, a parent complained to the Board when a bus driver let a four year old child off the bus in January although there was no one at the stop to meet him.

20Ms. Heath referred to three maps showing the boundaries and school bus routes regarding St. Charles Catholic School (which was not J.O.’s school), which is in the Glencoe area. Her testimony was that the first two maps show the overall size of the school zone, approximately 534 square kilometres, and that there are 16 regular routes in the area. The final map showed a particular route in the Glencoe area, running on a northeast axis away from the school, with arrows indicating the direction the bus would travel on the route. Ms. Heath explained that the route was about 45 to 50 minutes long and that in the morning the bus would begin picking up students at the farthest point from the school. She used this third map to demonstrate how adding a stop removed from the main axis of a route could add significant time and distance, which would change the timing of the route for all families on the route.

21Ms. Heath described a request received by STS in August 2010 for alternative bussing arrangements. The request came from the parents of a student seeking accommodation of their custody agreement. The parents proposed using existing bus stops and routes near their respective homes. The custody agreement involved a two week cycle. In the first week, they proposed that their son would be picked up in the morning at one stop and dropped off after school at a different stop on a different route on Monday, Wednesday and Friday. In the second week, they proposed that their son would be picked and dropped off at different stops and different routes on Wednesday. The letter did not state the age of the student. Ms. Heath confirmed that the request was denied because the only accommodation offered by STS is daily alternating stops. She considered the request to be very complicated.

22Mr. Weaver stated that the Board’s main concern when dealing with accommodation requests is safety. In Mr. Weaver’s view, the respondents could not provide reasonably safe transportation if accommodations are made – either specifically for J.O. or generally. The fact that J.O. got on busses to which he was not assigned caused Mr. Weaver great concern as a senior administrator and director of STS. According to Mr. Weaver risks with respect to students, parents and bus companies must be managed, as well as the general administration of the activity. If these criteria are aligned, then the Board and STS has done their jobs to mitigate risk as much as possible. Some risks are with respect to unknowns such as absent teachers, new drivers or absences in the STS office.

23Mr. Weaver also emphasized the value of consistency. He explained that school boards in Ontario are self-insured through the Ontario School Board Insurance Exchange (the “Exchange”). Mr. Weaver discussed the issue of school board transportation and the issue of alternative schedules with David Beale, the Director of Risk Management for the Exchange. I noted that the testimony regarding Mr. Beale’s opinion on these matters was hearsay, but admitted the evidence subject to the weight I may assign it. According to Mr. Weaver, Mr. Beale stated that alternative schedules represent a higher level of risk. With fixed schedules risk can be mitigated with consistency, but without consistency, e.g., if alternating schedules are used, it becomes impossible to mitigate risk. If the Board acknowledged moving to a system that is risky it would be hard to defend a negligence action in the event an accident causing injury occurred.

24In cross examination, Mr. Weaver testified that using alternate routes would not prevent the Board from being insured, but that if the Board adopted a practice it considered to be risky, then it would have difficulty defending a negligence claim. When asked if school boards that do accommodate joint custody arrangements are putting students at risk, he indicated that he had not spoken to Mr. Beale about other boards and he himself is not aware of the circumstances of other boards and could not comment.

Labour Relations Risk

25Mr. Weaver testified that providing accommodating by modifying bus routes or schedules could require additional teacher supervision, which presented potential labour relations risk. In recent years, the government facilitated negotiations regarding supervision time provided for in the collective agreements between school boards and the unions representing teachers. As a result, supervision time for each teacher is limited to 80 minutes per week. Accordingly, school boards no longer have as much flexibility to schedule supervision and cannot do everything they might like because of the time limits. Supervision is required for a variety of things such as recess, lunch time, before and after school, library and other functions. Assigning a teacher more than 80 minutes of supervision time in a week could result in a grievance from the Ontario English Catholic Teacher’s Association (“OECTA”) the union representing the Board’s teachers. Mr. Weaver noted that the funding formula for school bus services does not provide for funds for hiring monitors to supervise students as they get onto busses.

26Terry Grand is the Superintendent of Education for the Board, a position he has held for nine years. Before joining the Board, he was employed as an elementary school principal with the Niagara District Catholic School Board for fourteen years. He also held vice-principal and teaching positions with the Niagara Board. As Superintendent of Education, Mr. Grand is responsible for school operations, including the preparation of elementary workload reports and planning and preparation of supervision schedules. His role is to ensure adherence to the collective agreement with the OECTA, which limits supervision time to 80 minutes per teacher per week. In this regard, he works with the union and provides a schedule or schedules showing the allotment of supervision time in all of the schools in the system. Any circumstances where the supervision limit is exceeded are identified and corrected. Failure to adhere to the supervision limit could result in union grievances and “fines” for violation of the collective agreement. He noted that prior to 2010 the weekly supervision time limit was 90 minutes and before 2008 there was no limit at all.

27Based on his experience, classroom teachers would have to take on the responsibility of ensuring younger students whose busses change or alternate get on the correct busses. The end of the school day is also a busy time for teachers who deal with a wide variety of tasks when dismissing their classes. However, the collective agreement would not provide for extra supervisory time for this new responsibility.

28In cross examination, E.B. asked Mr. Grand how much additional supervision time was required regarding students who partake of the current Alternate Address Policy, i.e., where a student takes a different bus and route after school than he or she did to get to school in the morning. Mr. Grand was not aware of the practice. E.B. asked Mr. Grand how much additional supervision time would be required for alternating schedule for a grade 6 student who knew which bus to get on, as did J.O. Mr. Grand acknowledged that there would be no increase in supervision time, but would increase a classroom teacher’s responsibilities. Mr. Grand allowed that the impact of an individualized bus schedule depended on the age and maturity of the student involved, as some students are more independent than others. Regardless, there was no guarantee that students would always remember to get on the correct bus. When asked if each case could be examined to determine if a student was mature enough to manage an accommodated schedule, Mr. Grand noted that each case has risk associated with it. Further, he testified that it is difficult when serving the public to explain why accommodation might work for one student, but not another. Such inconsistency would potentially be an issue.

Risk Mitigation

29The respondents’ witnesses rejected several possible risk mitigation strategies posed to them by respondents’ counsel, Mr. Morrissey.

Teachers

30Ms. Heath rejected the proposition that teachers could manage more flexible bussing arrangements. The challenge, according to her, is that with 223 sites the ability to have consistent parameters would be lost using such ad hoc methods. Lists created by teachers may not match the approved lists given to the bus companies, which poses the possibility of not knowing who is on the busses at the right time. She agreed, however, that the lists provided to drivers do not reflect absences and in the case of an accident the school would provide a list of students in attendance that day. Students making use of the Alternate Address Policy would necessarily be on the student lists for two bus routes.

Drivers

31Ms. Heath testified that school bus drivers could not be relied upon to manage flexible arrangements, such as an alternating schedule. She noted that there is a level of inconsistency regarding bus drivers. For example, the drivers are not necessarily the same on each route each day and the driver on a route in the morning may not be the same as the driver in the afternoon on any given day. The bus companies control the assignment of drivers and there any number of reasons, e.g., vacation or illness that could cause a change in drivers. Ms. Heath estimated that bus driver ranks experienced an attrition or turnover rate of between 10% and 15%. Ms. Heath also pointed out that bus drivers are hired because they can operate a school bus. The drivers’ skill set is defensive driving, not administration. The directive to drivers is to follow routes as designed, without deviation every day. To maintain consistency, drivers must follow their routes as designed even if students on their routes are absent. Consequently, she rejected the proposition, put to her by Mr. Morrissey, that drivers could be given rider lists in order to take attendance to ensure students got on the right busses. The average number of students on a regular bus route is 50 to 55 students; therefore, a single list could be several pages long and there are dozens of busses. The result would be thousands of pages over the school year. The school busses are scheduled to arrive five minutes before dismissal at the end of the school day and depart about ten minutes later. Ms. Heath estimated that requiring drivers to take attendance would triple the time needed to embark the students and depart.

Elementary School Student Supervisors

32Mr. Grand described the supervision schedule for Sir Arthur Carty School (which was also not J.O’s school), which set out the supervision responsibilities for the staff for the 2011-2012 school year. Some of the duties were assumed by a person in the role of Elementary School Student Supervisor (“ESSS”). Mr. Grand explained that ESSSs are supervisory support staff who provided supervision during lunch and at other times such as school bus loading and unloading. ESSS personnel are typically parents, retired people etc. who are available to provide supervision for between one and two hours a day. He noted that it was difficult to attract and retain ESSS personnel, as there are only so many people willing to work one or two hours a day with intervals between supervision time. Some ESSSs are older people who may be more likely to be absent due to illness and others may find other work and leave. Accordingly, there is significant turnover in the ESSS ranks.

33The main job of an ESSS assigned to after school bussing is crowd control, e.g., making sure students get on busses and none are left behind. An ESSS may have to deal with all manner of things from behaviour or discipline to tying a shoelace. The average school in the system has between 250 and 300 students and the largest school has about 500 students. An ESSS would not know the students’ names or what class they are in with the possible exception of smaller schools. Loading school busses after school is a very busy time and, in Mr. Grand’s view, ESSSs are not able to deal with individual students, e.g., to ensure that a child gets on the right bus.

THE PARTIES’ SUBMISSIONS

34In brief submissions, E.B. noted that children do not have a choice about living in dual custody families. Children in dual custody families are already living in a disadvantaged situation and are marginalized; therefore, she submitted that it was unfair to discriminate against such children because of family status in the provision of school bus services. Regarding the respondent’s duty to accommodate, E.B. submitted that allowing her son to alternate busses each week did not amount to undue hardship. She noted that J.O. did in fact take alternate busses for about two years, which caused no undue hardship to the board, teachers or bus drivers. In fact, the de facto practice of alternating busses imposed no hardship on anyone.

35The respondents characterized the case as a competition between safety and the inconvenience experienced by a family when the respondents declined to alter its policies to meet their family arrangements. In this regard, the respondents stressed the inherent risks involved in moving nearly 50,000 students twice a day throughout the school year. The risk identified was human error by those involved in bussing students. Students may get on the wrong bus. Drivers may let young children off with no one to meet them. Parents may forget to pick up their children. Bussing students to and from school is a complicated process. The respondents’ legitimate concern is that personalizing the system to provide services according to parents’ desires would make the system more complicated and more risky.

36The respondents cited R v. Badesha 2008 ONCJ 94 (trial judgement) and 2011 ONCJ 284 (appeal decision) in supports their position. Mr. Badesha was charged with failing to wear an approved helmet while riding a motorcycle, contrary to section 104(1) of the Highway Traffic Act R.S.O. 1990, c. H.8. (the “HTA”). Mr. Badesha was a member of the Sikh faith and, as part of his faith, sincerely believed that he was required to wear a turban while in public and that he was not permitted to wear anything over his turban. Mr. Badesha therefore filed an application asserting that section 104(1) of the HTA violated his right to freedom of religion and equality pursuant to sections 2(a) and 15 of the Charter of Rights and Freedoms, respectively and violated sections 1, 9 and 11 of the Code. The respondents noted that the Attorney General of Ontario, who intervened in the case, adduced neither evidence regarding the risk to Mr. Badesha personally if he did not wear a helmet nor evidence that a helmet would prevent him from being injured. The Ontario Human Rights Commission, which also intervened, adduced evidence that allowing Sikhs to drive motorcycles without helmets would have a marginal impact on health care costs. Notwithstanding this evidence, the court found that a rule of general application designed to make the activity of riding motorcycles safer for everyone prevailed over his religious beliefs.

37In this case, the respondents acknowledged that there was no detailed evaluation of the risks associated with allowing J.O. to alternate school busses each week. In this regard, they submitted that J.O. is likely a mature young man and was likely careful taking busses just as Mr. Badesha may have been riding his motorcycle. As in Badesha, however, the respondents have implemented a rule universally applied to students, i.e., the requirement for consistent addresses, to ensure safety, which does not discriminate on any prohibited ground of discrimination. In this case, the rule interferes with the arrangements requested for the convenience of J.O.’s family. The respondents submit that the applicant provided no evidence that that the requested accommodation was necessary, i.e., that transporting him from his mother’s house to his father’s was problematic. The respondents submit that, as in Badesha, safety must be paramount.

38The respondents submitted that the applicant did not establish a prima facie case of discrimination. J.O. was not deprived of school bus service because his parents live in different houses and he was not deprived of service because his parents are separated. J.O. received the same service as did the other students in the Board’s system and the rule that bus service is provided to one, consistent address in the catchments area was applied equally.

39The respondent argued that the Primary Address Policy was in any event a bona fide requirement, pursuant to section 11(1)(a) of the Code. The respondents cited the three step test for evaluating the bona fides of a qualification set out in the Supreme Court of Canada decisions in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 SCR 3 (“Meoirin”) and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 SCR 868 (“Grismer”), which they summarized as follows: (1) the standard must be rationally connected to the function in question, (2) the standard must be adopted in good faith and (3) the standard must be reasonably necessary to accomplish the purpose or goal of the function. The standard will not be reasonably necessary unless accommodation of individuals sharing the characteristics of a claimant cannot be accomplished without imposing undue hardship on the service provider.

40The respondents submitted that they easily met the first two steps of the test, as the Primary Address Policy is intended to ensure the safety of students and is therefore rationally connected to the provision of school bus services and was adopted in good faith. The respondent submitted the Primary Address Policy was also reasonably necessary in the sense that it is not possible to carve out accommodations on a case-by-case basis in a school bussing system that moves approximately 100,000 bodies every day of the school year. The respondents cannot carve out individual accommodations without increasing the inherent risks involved in bussing students.

41The respondents recognized that secondary students pose less risk than elementary students; therefore, STS could make a distinction to allow them more flexibility. The respondents were not prepared to extend this flexibility to elementary students. The respondents submitted that they had to be fair and consistent, leading counsel for the respondents to ask rhetorically whether accommodating J.O. would require them to accommodate others, whether the respondents would be required to test the maturity or IQ of students seeking accommodation and how would they deal with the situations involving siblings. Ultimately, the respondents submitted, it was impossible for them to evaluate accommodation requests on a case-by-case basis.

42The respondents pointed to the potential risks associated with adding a bus stop to a rural route every second week. The additional stop may increase the length of the trip, which would affect all the families on the route. Every second week, each family on the route would have to remember that the timing of their child’s drop off was changed. They submitted the risk is that parents and students may forget the weekly alteration of the school bus route and may send children out too early or too late for the bus, creating the prospect of young children waiting for prolonged periods or missing the bus, possibly after parents have left for work. After school, children may not be met at their stops, if parents forget when they are to pick them up. If accommodation is required, several students on the same bus route might request accommodation, possibly resulting in multiple schedules. Such an increase in complexity would increase the likelihood of human error. The respondents suggested that if they were required to accommodate as requested by J.O. then it would not be fair to limit accommodation because accommodation of multiple requests became too complicated.

43To illustrate the potential complexity in which accommodation could result, the respondents referred to the custody arrangements for J.O.’s family set out in the two orders of the Family Court. They noted that the arrangements are designed to be flexible, including allowing the children to return to the arrangements set out in the first order. The respondents acknowledged the benefits of such flexibility for J.O.’s family and commended his parents for working out their schedules. The difficulty, however, would be in factoring such flexible arrangements into a system moving approximately 50,000 students (of which 20,500 are in elementary school) at one time.

44The respondents submitted that teachers are already heavily taxed with respect to time, particularly in primary grades, given their significant responsibilities. Managing individual bus schedules would add to this burden and require, for example, teachers to ensure young children get on the right bus, which changes every week. Relying on bus drivers to take attendance is impractical, since it would require printing thousand of pages of student lists.

45To operate a school bus system of this scale requires consistency. Allowing for accommodation of individual results in less consistency, which can reasonably be predicted to lead to higher risk. Such higher risk is naturally a concern to the respondents and their insurer and is to be avoided.

46In brief reply remarks, E.B. acknowledged that safety is an important issue and that accommodation could be challenging. However, she pointed out that other schools manage to accommodate dual custody arrangements, as was admitted by the respondents. Accordingly, she submitted that the respondents could also find a way to offer transportation to dual custody families.

ANALYSIS AND DECISION

47Section 1 of the Code states as follows:

Every person has a right to equal treatment with respect to services, goods 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.

48The parties did not dispute that the transportation the respondents provide to students is a “service” for the purposes of the Code and, indeed, the Tribunal has found school bus transportation to be a service in previous decisions. See, for example, M.O. v. Ottawa Catholic District School Board 2010 HRTO 1754.

49The parties devoted most of their efforts in this case to the issue of accommodation. However, as the Tribunal noted in Baber v. York Region District School Board, 2011 HRTO 213, the duty to accommodate is not a free standing obligation under the Code. Rather, it arises only pursuant to sections 11, 17 or 24 of the Code where a person is disadvantaged because of a prohibited ground of discrimination and the respondent defends its otherwise discriminatory actions. The Supreme Court of Canada noted in Meoirin and Grismer that the inquiry moves to the bona fides of the requirement in question only if a prima facie case has been made out that the requirement is discriminatory. In other words, the duty to accommodate arises only where an applicant has been subject to direct or adverse effect discrimination. The applicant bears the onus of establishing a prima facie case of discrimination, which, if established, shifts the evidentiary burden to the respondent to show that it accommodated the applicant to the point of undue hardship.

50Sections 17 and 24 of the Code are concerned with disability and employment, respectively, and are not engaged by this Application. The applicant did not suggest that STS’ policies were overtly discriminatory; therefore, for the Application to succeed I must find that the respondents’ school transportation policies amount to constructive discrimination, which is prohibited under section 11 of the Code. Section 11 of the Code states as follows:

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 that 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.

(3) The Tribunal or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship.

51In Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 SCR 143, the Supreme Court of Canada considered the nature of discrimination and provided the following well known characterization:

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 upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed.

The respondent argued that STS’ policies are not discriminatory because they are applied equally and J.O. received the same service as did the other students in the Board’s system, i.e., using his primary address or an alternate address used consistently every week. The respondents are correct that the STS’ policies do not on their face directly discriminate on a prohibited ground, but the focus of section 11 is the result or effect of a requirement, in this case the Primary Address Policy and the narrow exception available under the Alternate Address Policy. J.O. was provided with bus service to a stop near his primary address, his mother’s home, and the option provided under the Alternate Address Policy was not a solution given the nature of his parents’ custody arrangements.

52The result was that every second week during the school year (when he resided with his father) the school bus did not bring him to his intended destination, which required that he be transported from his mother’s house to his father’s. In my view, this requirement of additional transportation was a burden or disadvantage imposed on J.O. that was not imposed upon students for whom the Primary Address Policy was a non-issue, e.g., students who whose parents do not have custody arrangements requiring them to alternate households.

53The respondents sought to trivialize the disadvantage experienced by J.O. by noting that his parent’s lived fairly close to each other, about 5km, requiring only a short secondary trip, about six minutes. The proximity of J.O.’s parents’ home is somewhat of a fortuitous accident in my view. Given the large area served by the STS, one could easily imagine a much longer secondary trip. In any event, J.O.’s parents live far enough apart to be served by different school bus routes. Six minutes (the time to drive between E.B.’s and T.O’s homes) would be the minimum extra time imposed on J.O in arriving at his father’s home, assuming someone was ready and waiting to take J.O. to T.O.’s house immediately upon his arrival at his mother’s house and assuming no traffic issues. The requirement of a secondary trip every second week remained in place for a significant period of time, i.e., until after he graduated from grade 8. Consequently, even assuming each trip between his parent’s homes was six minutes, I do not believe the disadvantage experienced by J.O. can be characterized as trivial or merely inconvenient.

54The respondents also noted that it was not necessary that J.O. be delivered to his father’s home, since there was no evidence that J.O.’s parents could not arrange transportation to his father’s home. It is not disputed that J.O.’s family could deliver him to his father’s house, but the requirement of this additional trip is precisely the result that make the STS’ policies discriminatory. Other children are delivered from their respective schools to their homes without the need for them to be transported from their drop off point to their ultimate destination.

55The burden or disadvantage imposed on J.O. is directly linked to family status, which is defined in section 10 of the Code as follows:

“family status” means the status of being in a parent and child relationship

J.O. is a child of divorced parents. As a consequence of the custody arrangements arrived at following his parents’ divorce, J.O. lives with each of his parents on alternating weeks. It was this alternating custody arrangement that did not conform to the Primary Address Policy and required accommodation not contemplated by the Alternate Address Policy. Consequently, I find that the STS’ Primary Address Policy imposed a disadvantage or burden upon J.O. in the delivery of school bus services because of his family status. Accordingly, I find that J.O. has established a prima facie case of discrimination.

56Having found that the Primary Address Policy is prima facie discriminatory, I must determine whether the policy is a bona fide requirement in the circumstances, pursuant to section 11(1)(a) of the Code. As the respondent noted, the Supreme Court of Canada set out the test for assessing whether a requirement is bona fide in Meoirin and Grismer, which the Tribunal has adopted. Accordingly, I find the respondents must show the following in order to establish the Primary Address Policy is a bona fide requirement:

(1) that the respondents adopted the policy for a purpose rationally connected to the delivery of school bus services;

(2) that the respondents adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that purpose; and

(3) that the standard is reasonably necessary to the accomplishment of this purpose. To show that the standard is reasonably necessary, the respondent must show that it could not accommodate the needs of the group of which the applicant is a member without undue hardship.

In Meiorin, the Supreme Court of Canada also established that the duty to accommodate has both a procedural and a substantive component. To meet the procedural aspect of the duty to accommodate, a respondent must take adequate steps to explore what accommodation is needed, and to assess accommodation options. The substantive component of the analysis considers whether the accommodation offered was reasonable or whether a respondent was justified in not providing accommodation. The respondent bears the onus of demonstrating the considerations, assessments, and steps it undertook to accommodate the employee to the point of undue hardship.

57The Tribunal has found that failing to meet the procedural requirements of the duty to accommodate is discriminatory in itself because it denies the affected person the benefit of the prohibition against discrimination, and a proper search for accommodation. See Lane v. ADGA Group Consultants Inc., 2007 HRTO 34 (confirmed on appeal: ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.)).

58In Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 the Supreme Court of Canada described the accommodation process as a multi-party inquiry. The party seeking accommodation is responsible for requesting accommodation and must facilitate the search for accommodation, which includes accepting reasonable proposals that would meet his or her needs. In this respect, the Court noted that an accommodation seeker cannot expect a perfect solution, but accommodation that is reasonable in all the circumstances of the case. The party from whom accommodation is sought is in the best position to determine how to provide accommodation without undue interference to its operations and is responsible for originating proposals to provide reasonable accommodation to the point of undue hardship. The Court also noted that the term “undue hardship” infers that some hardship is acceptable and that an accommodation provider must show actual and substantial interference with its operations to establish undue hardship. Minor inconvenience or interference does not suffice. Under section 11(2) of the Code, undue hardship is assessed “considering the cost, outside sources of funding, if any, and health and safety requirements, if any”. Accordingly, a respondent may be required to incur some level of cost or additional safety risk without experiencing undue hardship.

59In Pantoliano v. Metropolitan Condominium Corporation No. 570, 2011 HRTO 738, the Tribunal considered how risks should be measured when assessing whether accommodation will cause undue hardship. The Tribunal adopted the methodology for measuring risk set out in the Ontario Human Rights Commission’s Policy and Guidelines on Disability and the Duty to Accommodate, as follows (at paragraph 100):

In determining the serious or significance of a risk, the following factors should be considered:

• the nature of the risk

o what could happen that would be harmful?

• the severity of the risk

o how serious would the harm be if it occurred?

• the probability of the risk

o how likely is it that the potential harm will actually occur?

• is it a real risk, or merely hypothetical or speculative?

o could it occur frequently?

• the scope of the risk

o who will be affected by the event if it occurs?

The seriousness of the risk is to be determined after accommodation and on the assumption that suitable precautions have been taken to reduce the risk.

60I agree that the respondent easily meets the first two steps of the Meiorin / Grismer test. The Primary Address Policy and the limited exception provided in the Alternate Address Policy is intended to enhance the safety of school bus services and safety was the reason the respondents denied J.O.’s request. The need for safety is obviously rationally connected to the operation of school bus services, which was not contested. I am satisfied that the respondents promulgated the policy in good faith.

61The respondents have not established, however, that the Primary Address Policy is reasonably necessary to accomplish the respondents’ valid goals because the respondent did not show that the applicant and other students in similar circumstances cannot be accommodated without undue hardship. The respondents met neither their procedural nor substantive duties to accommodate J.O. From a procedural perspective, the evidence is that the respondent denied E.B.’s request for accommodation of J.O. because the requested accommodation did not come within the narrow exception provided for in the Alternate Address Policy. Beyond confirming the request did not conform to the Alternate Address Policy, the respondent offered no evidence that it gave any consideration to the request, made any inquiries regarding the accommodation needed, or considered any potential options for accommodation. The respondents’ efforts clearly fell short of meeting the procedural requirements of the duty to accommodate.

62Substantively, the respondents did not address whether J.O’s particular needs would cause them undue hardship, which they acknowledged. Rather, the respondents sought to establish that providing school bus services is an inherently risky undertaking requiring absolute consistency in the scheduling and operation of bus routes. The respondents further sought to establish that relaxation of the Primary Address Policy by requiring accommodation beyond the narrow exception of the Alternate Address policy would lead to compromised safety for students riding on school busses, as well as potential issues with the teacher’s union regarding supervision time, inconvenience to families caused by the potential disruption of schedules and exposure to liability.

63The respondents’ evidence established that the operation of school bus services is somewhat complex, given the number of students and different players (teachers, drivers, students, parents etc.) involved, but not that it is a particularly risky enterprise. The respondents pointed to only two incidents involving elementary school students where students did not connect with their parents as planned because someone made a mistake. Without diminishing the potential gravity of these incidents, the evidence falls short of demonstrating that human error is a common occurrence in the respondents’ school bus operations and that any derogation from their consistency of practice will inevitably lead to compromised safety. Ms. Heath posited circumstances that could lead to inconsistency and disruption. Mr. Weaver suggested accommodation exposed the respondents’ to union grievances if it led to excess supervision time for teacher or to liability for negligence. Mr. Grand also pointed to the possibility for a dispute with the union if accommodation caused supervision time limits to be exceeded and was concerned with the possibility of inconsistent results.

64I have attached little weight to any of this evidence, particularly Mr. Weaver’s hearsay evidence on the issue of negligence, because none of it provided the detailed risk analysis described in Pantoliano regarding whether accommodating J.O. presented undue risks. The safety risk identified by the respondent was that implementing a schedule where a student would alternate between school bus routes every other week would cause both routes to change every week. The constant change of the routes could cause students to miss busses in the morning or wait for a prolonged period (if they or their parents forgot about the change in timing) or the accommodated student might get on the wrong bus after school. The harm in such circumstances could be serious, but the respondents provided no reason to believe that these circumstances were likely or likely to occur frequently.

65The potential labour relations risk the respondents identified is by no means unimportant, although the jurisprudence indicates that deviation from the terms of a collective agreement may in some circumstances be necessary to allow reasonable accommodation (See Renaud at page 25-30), which the respondents acknowledged. Regardless, there was no evidence that accommodation of the nature requested for J.O. would require additional supervisory time for teachers. To the contrary, E.B.’s evidence was that teachers use various means to direct students to the correct busses as part of their regular dismissal procedures. Mr. Grand allowed that accommodation of the type sought for J.O. would not add to supervisory time. Therefore, I cannot conclude that this kind of accommodation is likely to cause a violation of the collective agreement between the Board and OECTA.

66The evidence also indicates that the respondents have the means to mitigate the safety risks they say accommodating J.O. with an alternating school bus schedule pose. Allowing a student to use an existing stop reasonably close to his home (the practice J.O. adopted) on his second route (i.e., not serving the primary address) would require no changes to the second route. In any event, Ms. Heath testified that drivers are required to drive their routes as designed regardless of whether students on their routes are absent. Consequently, it would seem that having a student alternate bus routes each week should not impact the timing on either route, since the drivers will follow the route as designed regardless of which route the accommodated student is traveling on for any given week.

67The respondents acknowledged that other school boards and consortia do permit more flexible bussing arrangements, including alternating routes, but there is no evidence that they investigated the precautions and risk mitigation strategies the other boards and consortia employ.

68I note at this point that the respondents adduced no evidence regarding how they ensure students get on the correct busses in the normal course of their operations, although the evidence indicates that they are quite successful in this regard. The only evidence on this point came from E.B., a teacher with the Board, who noted that teachers already use a variety of creative and practical methods to direct students to the proper busses at the end of the school day. The respondents provided no basis on which to conclude that such methods would not be effective in managing modified bus schedules such as J.O. requested.

69The respondents argued that the Court’s decision in Badesha stands for the proposition that a service provider can ignore the circumstances of an individual seeking accommodation in order to uphold a safety regulation of general application. In this regard, the respondents note that the Court upheld the provision of the HTA requiring that motorcyclists wear helmets without any evidence of Mr. Badesha’s personal driving habits or whether he posed a particular safety threat to himself or others by not wearing helmets. The respondents argue that they were similarly entitled to ignore J.O.’s individual circumstances, i.e., whether accommodating him posed an undue safety risk, in favour of sustaining the integrity of a generally applied safety rule (the Primary Address Policy). In my view, Badesha is of no assistance to the respondents. The respondents are correct that the Court did not consider evidence regarding Mr. Badesha’s particular circumstances. However, the trial judge found on the evidence before him that allowing Sikhs to ride motorcycles without helmets would lead to preventable deaths and injuries, which he concluded was undue hardship. Accordingly, there is no basis for the respondents’ assertion that it can refuse a request for accommodation without assessment of whether meeting the particular request would cause harm (which might well amount to undue hardship). Further, while the respondents speculated that changing their policy might increase safety risks, I have found that they failed to provide sufficient evidence that would allow me to conclude that providing the type of accommodation requested in this case would cause some type of identifiable harm.

70Accommodating J.O. would not have caused undue hardship for the respondents. The evidence is that when the respondents refused to allow J.O. to alternate bus routes in order to travel to his father’s house, he did it anyway – from January 2007 onward. Every other week, J.O. got on the bus route to his father’s house without supervision from anyone, got off at a pre-existing stop and walked to his father’s house. There was no evidence that J.O.’s safety was ever compromised by doing so. In other words, to accommodate J.O. the respondents did not have to change a bus route and, as a result, there would have been no disruption to the timing to any bus route that could cause difficulties for other students or their families. I find that the respondents could have accommodated with minimal effort, and without exposing J.O. or any other student to any heightened safety risk. Accommodating J.O. required no additional teacher supervision time and would not have caused the Board any difficulties regarding collective agreement with OECTA. Accordingly, accommodating J.O. would have had a minor effect, if any, on the respondents’ operations that does not amount to undue hardship. I find that the respondents have not established that the Primary Address Policy is reasonably necessary to the provision of school bus service and is therefore not a bona fide requirement pursuant to section 11(1)(a) of the Code. In coming to this conclusion, I do not wish to be taken to condone disobedience of the respondents’ policies and directions to comply with them. However, had the respondents’ considered the circumstances in light of their Code obligations, they should have allowed him to alternate bus routes as he did.

REMEDY

71The Tribunal’s remedial authority is set out in section 45.2 of the Code as follow:

45.2 (1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

72The applicant sought only a non-monetary remedy, i.e., an order requiring the respondents to change their policies to recognize their obligations under the Code to accommodate to the point of undue hardship. In light of my findings in this matter, such an order is appropriate. The Tribunal orders that the respondents amend their policies and procedures regarding school bus transportation so as to directly address the accommodation of individuals subject to custody arrangements that conflict with the Primary Address Policy, and to articulate the process that the respondents will follow in addressing such individuals’ accommodation needs. The respondents shall also amend any information provided to students and parents regarding the availability of alternative bussing arrangement to reflect the amended policy. The respondents are to retain the services of a consultant or lawyer with expertise in human rights and accommodation to provide advice regarding the necessary amendments to their policies. A copy of this decision is to be provided to the lawyer or consultant in advance of the preparation of this policy. The policy and all other resulting changes are to be finalized and promulgated on the respondents’ websites by August 1, 2012.

73The respondents are obviously concerned that the implication of this order is that they will be inundated with requests for accommodation and that they will be required to approve all of them. There was evidence before me of only two such requests, including J.O.’s, but it may be that the respondents will receive more requests for alternative bussing arrangements following this decision. The respondents will be obliged to consider and investigate all requests for accommodation and to make and implement reasonable proposals to meet each individual’s needs. In some cases, the respondents may not be able to meet a request for accommodation without undue hardship and so some requests may be approved and others denied, which is unavoidable.

ORDER

74The Tribunal orders the respondent to amend (with the assistance of a consultant or lawyer with expertise in human rights and accommodation) their policies and procedures regarding transportation of students in order to provide for the accommodation of students subject to custody arrangements that conflict with the Primary Address Policy. The respondents shall also amend any information provided to students and parents regarding the availability of alternative bussing arrangement to reflect the amended policy. The amendment shall include the process that the respondents will follow in order to address requests for accommodation from such persons. The policies and procedures and all other necessary changes are to be finalized and promulgated on the respondents’ websites by the end of business on August 1, 2012.