HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

D.S. by his litigation guardian L.S., and A.C. by his litigation guardian P.S.-C.

Complainants

-and-

Ontario Human Rights Commission

Commission

-and-

London District Catholic School Board

Respondent

DECISION

Adjudicator: Mark Hart

Date: April 18, 2012

Citation: 2012 HRTO 786

Indexed as: D.S. v. London District Catholic School Board

APPEARANCES

Ontario Human Rights Commission ) Anthony Griffin, Counsel

D.S., Complainant ) By his litigation guardian, L.S.

A.C., Complainant ) By his litigation guardian, P.S.-C.

London District Catholic School Board, ) Eric Roher and Melanie Warner, Counsel

Respondent )

1The complaint of D.S. was filed on June 5, 2006 and alleges that D.S. did not receive proper accommodation for his disabilities at Our Lady of Lourdes Catholic School (the “school”). The complaint of A.C. was filed on June 13, 2006 and similarly alleges that A.C. did not receive proper accommodation for his disabilities at the same school. The Commission joined both complaints and referred them to the Tribunal by letter dated October 15, 2007.

2The hearing in this matter was held in London on November 24 and December 2, 2010 and March 25, 2011, with a final respondent witness heard by teleconference on April 18 and May 10, 2011. The parties filed their final submissions in writing, with the last submissions received on October 7, 2011.

3I directed that the parties file complete written statements of evidence for each of their witnesses, which were affirmed by each witness and received into evidence by me. I also set a timetable for hearing any supplementary evidence in chief from the witnesses and for cross-examination, which was generally adhered to, although if further time was required to complete a witness’ evidence, this was allowed.

4I heard from the following witnesses at the hearing:

• D.S.’s mother and litigation guardian, L.S.,
• A.C.’s mother and litigation guardian P.S.-C.,
• The Principal at the school at the material time,
• The Student Program Support Teacher (“SPST”) at the school at the material time,
• The then Superintendent for Special Education at the respondent Board,
• D.S.’s Grade 5 teacher,
• A.C.’s Grade 4 teacher,
• A.C.’s first Grade 5 teacher, who taught this class from September to December 2004 before going on maternity leave,
• A.C.’s second Grade 5 teacher, who taught this class from January to June 2005,
• A.C.’s Grade 6 teacher, and
• An Affiliate Liaison Teacher with the respondent Board, who provides special education support to schools (by teleconference).

5At the outset, I wish to say that I appreciate the time and effort that L.S. and P.S.-C. have dedicated to this proceeding and the issues before me, which have remained outstanding for far too long. There is no doubt in my mind that both L.S. and P.S.-C. are very involved and concerned parents who at all times were acting in what they regarded as the best interests of their children. I also wish to say that I was impressed by the evidence given before me by the various teachers and the SPST, who I believe demonstrated commitment and dedication to their students, and in particular to D.S. and A.C., who I regard as being a credit to their profession. I also wish to thank counsel and the complainants for their very thorough and able submissions, which I have carefully reviewed and considered.

6In rendering this Decision, I have carefully considered all of the case law and authorities that have been referred to me by the parties, though I have not felt it necessary to refer to this material in detail in the body of my Decision as, in my view, much in this case turns of the evidence and my findings of fact. I also have carefully considered the Commission’s Guidelines on Accessible Education (2009), which I accept is a policy within the meaning of the Code and with which I am in general agreement.

D.S. Complaint

1) Nature of D.S.’s disabilities

7D.S. was 12 years old at the time the complaint was filed. He attended the school for Grades 1 and 2. Thereafter, he was withdrawn from the school and home-schooled, until he returned to the school in September 2005. The matters at issue in this proceeding relate to the 2005-06 school year.

8In March 2003, when D.S. was 8 years old, he was assessed by a pediatrician named Dr. Paul Kerr. By report dated April 7, 2003, Dr. Kerr diagnosed D.S. as having Attention Deficit Hyperactivity Disorder (“ADHD”) – inattentive variety. While Dr. Kerr stated that there was no strong evidence for a learning disability, he diagnosed D.S. with a mild visual – spatial learning disability and indicated that it was possible that D.S. had mild dyslexia – phonics. Dr. Kerr’s full report was not provided to the school until December 2005, although Dr. Kerr’s impression, diagnosis, and recommendation were excerpted in a report prepared by Mr. Bach dated April 18, 2005.

9An educational assessment dated April 18, 2005 was prepared by Martin Bach, a psychologist, when D.S. was almost 11 years old. Mr. Bach conducted a range of testing and observation of D.S. as part of his assessment. Overall, Mr. Bach found that the results of his assessment were consistent with the information provided by Dr. Kerr in 2003. Mr. Bach also expressed his view that the results of his assessment were consistent with the presence of a probable Attachment Disorder for D.S. Mr. Bach also recommended that D.S. be assessed for the possible presence of a Central Processing Disorder. He further recommended that D.S. be referred to a psychiatrist, Dr. Jerome, in order to determine whether D.S. was being adversely impacted by Attention Deficit Disorder, Depression, or a possible combination of the two. As part of his report, Mr. Bach made a series of recommendations regarding educational accommodations for D.S. Mr. Bach’s report was provided to the school at a meeting on April 25, 2005.

10On May 11, 2005, D.S. was evaluated by a clinical audiologist for central auditory processing issues. The audiologist’s report, which is dated May 11, 2005, found that D.S. had difficulties completing certain subtests and showed central auditory processing difficulties in the areas of tolerance / fading memory (difficulty in listening in noise and poor short-term memory) and organization skills (difficulty with sequencing, planning and organizing responses). The audiologist made a series of recommendations for educational accommodations for D.S., which were to be reviewed in one year. The respondent’s evidence is that this report was provided to the school in early September 2005. L.S. could not recall whether she had provided this report to the school shortly after it was prepared or in early September 2005. As a result, I find that the preponderance of the evidence supports that the audiologist’s report was provided to the school in early September 2005.

11On June 6, 2005, D.S. was evaluated by Dr. Laurence Jerome, a psychiatrist. Dr. Jerome’s report, which is dated June 6, 2005, states that D.S. meets the criteria for an ADHD Syndrome and that D.S. also has an anxious insecure attachment, possibly with temperamental anxiety features. Dr. Jerome expressed his view that while D.S. clearly has some attachment issues, he believes that the prime focus of therapy should be helping the parents understand that some of D.S.’s disruptive impulsive behaviour patterns are not wilfully done but more driven by ADHD. This report was not provided to the school until December 2005.

12D.S. was further assessed by Dr. Jack Albin, a psychologist, in late December 2005. In his report dated January 2, 2006, Dr. Albin expressed his view that D.S. did not have a problem with his attachment to his family. Rather, Dr. Albin expressed his belief that D.S. presented issues in two areas: first, a highly significant ADHD with primarily inattentive symptoms; and second, multiple learning disabilities. With regard to the nature of D.S.’s learning disabilities, Dr. Albin categorized them as being within the designation educationally as a Communications / Learning Disability, which includes information processing learning disabilities and academic learning disabilities. Dr. Albin’s report summarizes previous recommendations for educational accommodations. This report was provided to the school in January 2006.

13On the basis of the evidence before me, the respondent does not take issue with the fact that D.S. had a disability within the meaning of the Code at the material time.

2) Allegations re lack of accommodation

14At the conclusion of L.S.’s evidence in chief in this proceeding, I summarized her allegations of a lack of proper accommodation of D.S.’s disabilities as being threefold: (1) the requirement in October 2005 for D.S. to move from half-day attendance at school to full-day attendance; (2) L.S.’s understanding in October 2005 that D.S. would no longer have access to the SPST which, though this changed over time, is alleged never to have gotten to a sufficient level; and (3) an alleged failure to commit to implementing the recommendations made by Dr. Albin. I will address each of these allegations in turn, and will then address certain other matters arising from the evidence and submissions.

a) Requirement for full-day attendance

15As stated above, D.S. was withdrawn from the school and home-schooled for three years. In the spring of 2005, D.S.’s parents made the decision to attempt to return D.S. to the school. D.S.’s parents met with the school on April 25, 2005 together with the psychologist, Mr. Bach. From the Board’s side, the meeting was attended by the school Principal and by the Board’s affiliate liaison teacher for special education.

16D.S.’s disabilities and requested accommodations were discussed at this meeting, which was very positive from the perspective of all parties. D.S.’s parents wanted D.S. to be placed in a Grade 4 class or a split Grade 4 / 5 class, while the Principal and the special education liaison felt it would be better if D.S. were placed in Grade 6, which was his age appropriate grade. All parties agreed to compromise by placing D.S. in a Grade 5 class.

17D.S.’s parents, supported by Mr. Bach, also wanted D.S. to attend school for half-days, during which time his schooling would focus on the areas of math and language. They wanted there to be a lengthy transition period of six to ten months before moving to full-day attendance was considered. They understood that the Principal agreed to this. The respondent’s evidence is that, while there was agreement that D.S. initially would attend school for half-days, no agreement was made that this would continue for a period of six to ten months.

18D.S. commenced attending the school on a half-day basis in September 2005. By all accounts, his re-integration to the school was going extremely well. Both D.S.’s Grade 5 teacher and the SPST were pleased with how well D.S. was adjusting. L.S. was in close contact with the teacher and SPST during this initial period, and she too was generally pleased with how her son was faring.

19In the latter part of September 2005, the Principal met with the teacher, the SPST, and the special education liaison to discuss D.S.’s progress at the school. The outcome of this meeting was that it was felt that D.S. would benefit from attending school for full days. The idea of moving D.S. to full days was raised informally with L.S. by a variety of individuals over the ensuing short period of time, but was not formally presented as a requirement until a meeting held on October 6, 2005.

20The meeting on October 6, 2005 was attended by D.S.’s parents, Mr. Bach, and a large number of school and board representatives. At this meeting, the Principal presented the view that D.S. should move to full-day attendance. Following the meeting, the Principal formalized this requirement in a letter dated October 6, 2005, stating that D.S. needed either to attend school on a full-time basis on or before October 24, 2005 or re-commence home-schooling.

21This was not well-received by D.S.’s parents who felt that the Principal was breaking the commitment that had been made to them at the April 2005 meeting. In my view, it is this belief that the Principal had gone back on a commitment that has fuelled much of the acrimony between the parties and set the ensuing events in motion. However, the issue for me under the Code is not to determine whether the Principal reneged on a commitment he had made, but to determine whether the evidence before me indicates that D.S.’s disabilities gave rise to a need for half-day attendance at school which was denied by the school as an accommodation. This is not supported by the evidence.

22By the time of the October 6, 2005 meeting and the Principal’s letter, D.S.’s parents had provided two reports to the school, namely Mr. Bach’s report dated April 18, 2005 and the audiologist’s report dated May 11, 2005. Neither one of these reports indicates that D.S. needed to attend school on a half-day basis due to his disabilities. In particular, Mr. Bach’s report sets out extremely detailed recommendations about D.S.’s educational accommodations, including a recommendation about the grade level that would be most appropriate for D.S., but does not indicate that half-day schooling is required. In addition, prior to the October 6, 2005 meeting, Mr. Bach prepared a further consultation note dated September 29, 2005, at a time when the idea of D.S. moving to full-day attendance already had been raised informally with L.S., which also does not state that half-day schooling is required.

23While Mr. Bach was not called as a witness to testify before me, I accept that there is little doubt that Mr. Bach was supportive of D.S. initially attending school on a half-day basis at the time of the April 25, 2005 meeting. While I do not have the benefit of his evidence, Mr. Bach may still have continued to believe that this was in D.S.’s best interests at the time of the October 6, 2005 meeting. In this regard, I do not accept the respondent’s evidence that at the October 6 meeting, Mr. Bach “agreed” with D.S. moving to full-day attendance. However, on the basis of Mr. Bach’s own record of this meeting, he at the very least acquiesced in the school’s decision. Mr. Bach’s note of this meeting states that he said that if D.S. were to return to school on a full-day basis, then he would need the opportunity to prepare D.S. for the new schedule before it started. He stated that he would need two weeks to do this, and the Principal agreed to this. Of particular note is that Mr. Bach does not record that he said that D.S. was incapable of attending school on a full-day basis due to his disabilities or that D.S. needed to continue attending half-time.

24This is in marked contrast to the position taken by Mr. Bach at the April 25, 2005 meeting regarding the grade level placement for D.S. Mr. Bach’s record from this meeting indicates that in response to the Principal’s view that D.S. should be placed in an age appropriate Grade 6 class, Mr. Bach spoke up against this by emphasizing that if placed in Grade 6, D.S.’s immature emotional age would place him in a socially untenable position likely to make him a target for other students. As a result, agreement was reached to place D.S. in Grade 5. My point is that Mr. Bach appears capable of speaking up when he believes that D.S.’s disability-related needs would prevent him from meeting the requirements of a school decision, which he demonstrated at the April 2005 meeting. In contrast, at the October 6, 2005 meeting, Mr. Bach not only failed to indicate that D.S.’s disabilities made him incapable of fulfilling the requirement to attend school on a full-day basis, but implicitly indicated that D.S. was viewed by Mr. Bach as being capable to doing so if given a two week period to prepare, which was granted by the school.

25I am aware that D.S.’s parents hold a sincere and heartfelt belief that continuing to attend school on a half-day basis was in D.S.’s best interests. I have carefully considered the basis for this belief as set out in L.S.’s statement of evidence. But a parent’s belief, however well-intentioned, is not the same as having the evidence of a medical or health practitioner to establish that D.S. was incapable of attending school on a full-day basis due to his disabilities or that D.S. needed to continue attending half-time for that reason.

26In this regard, the only evidence before me from a medical or health practitioner regarding D.S.’s need to attend school for half-days is a brief letter from D.S.’s family physician dated December 5, 2005, which states in its relevant part:

. . . I believe that in order to best serve [D.S.]’s schooling needs, it would be appropriate for him to be reintroduced slowly, half days into the school system for the core subjects at his level, so as to accommodate his current needs, socially and academically and to maximize his learning potentials.

27The family physician did not testify before me to explain the basis for this belief as expressed in his letter. Nor is the basis for this belief explained or supported in the letter itself. The belief is simply expressed. No timeframe is expressed for what is meant by reintroducing D.S. “slowly” or whether this means a longer period of time than Mr. Bach said was needed at the October 6, 2005 meeting.

28In these circumstances, I place no particular weight on this expression of belief by D.S.’s family physician, which I regard as being more in the nature of a supportive letter for D.S. and his parents than the expression of a sound and reasoned medical opinion. Further, I have had regard to the very detailed reports of Mr. Bach and Dr. Albin, which go to great lengths to set out recommendations for educational accommodations for D.S. but nowhere state that half-day attendance is required or that D.S. is incapable of full-day attendance. Had this been a need arising from D.S.’s disabilities, I would have expected to see that need expressed in these reports.

29As a result, I find that it has not been established on the evidence before me that half-day attendance was a need arising from D.S.’s disabilities or that D.S. was incapable of full-day attendance due to his disabilities. Accordingly, I find that the requirement imposed by the school for D.S. to move to full-day attendance was not in violation of the Code.

b) Allegation re withdrawal of SPST

30The next issue relates to L.S.’s understanding in October 2005 that D.S. would no longer have access to the SPST which, though this changed over time, is alleged never to have gotten to a sufficient level.

31When arrangements originally were discussed for D.S. to return to the school, certain safety measures were requested by his parents and agreed to by the school to address bullying that D.S. had experienced at the school when he was in Grades 1 and 2 and that the parents feared might re-emerge following his return. These safety measures included that D.S. would be dropped off at the school in the morning where he would spend time under the SPST’s supervision in the resource room until the commencement of the school day, that he would not go out for morning recess with the other children but would spend this time under the SPST’s supervision in the resource room, and that he would go to the resource room when it was time for lunch to wait to be picked up by his parents. There is no dispute that these arrangements were in place up until the time of the October 6, 2005 meeting.

32There is some dispute between the parties as to what D.S. was doing or was supposed to be doing during these times when he was in the resource room with the SPST. The understanding of D.S.’s parents is that during these times, D.S. would be receiving assistance with his school work from the SPST as part of the accommodations for his disabilities. In contrast, the school’s position is that during these times, D.S. was simply being supervised by the SPST and that no formal programming or instruction by the SPST was occurring before the start of the school day, during morning recess, or during the lunch period while D.S. was waiting to be picked up. The SPST’s evidence supports that this is what in fact was happening, although I have no doubt that the SPST is likely to have provided informal assistance to D.S. during these periods from time to time.

33While D.S. was being supervised by and perhaps receiving some informal support from the SPST during these non-teaching periods, the evidence before me indicates that D.S. was receiving formal assistance from the SPST during regular teaching periods. The SPST’s evidence is that during math class, D.S. would often be withdrawn with a small group of students into the resource room where the SPST would provide cueing, clarification, and guidance to understand new concepts and would teach new concepts to this group of students. In addition, the SPST’s evidence is that she also would go into the classroom at various times throughout the week to work with D.S. and other students who needed additional support. This evidence is supported by the evidence of D.S.’s Grade 5 teacher, who states that the SPST was very good in being present to support D.S. and other students both in the class and in the resource room when they needed extra assistance or to take tests, which included such things as providing extra time, prompting, re-wording, scribing, and clarification.

34L.S.’s evidence is that she was told by the Principal at the October 6, 2005 meeting that D.S. would no longer have access to the SPST and that no specific resource assistance was required for D.S. She also states that this was her understanding of the Principal’s October 6, 2005 letter, which indicates only that the SPST would support the classroom teacher to provide accommodations and remediation. L.S.’s evidence is that getting support for D.S. from the SPST was a big reason why his parents decided to have him return to the school. L.S.’s evidence also is that she was told by D.S. that in the two weeks prior to the October 6, 2005 meeting, he was receiving less support from the SPST.

35This evidence is contradicted by the respondents. The evidence of both the SPST and D.S.’s Grade 5 teacher is that there was no change in the level of resource support that D.S. was receiving in the period of time leading up to the October 6, 2005 meeting. There is no direct evidence before me to refute this, as all I have is the hearsay evidence of D.S. as told to his mother. I have no hesitation in accepting the direct evidence of the SPST and the classroom teacher on this point.

36The evidence of the SPST, the classroom teacher, and the Principal is that, in moving D.S. to full-day attendance, there was no plan or intention to diminish the resource support that he already was receiving. The Principal’s October 6, 2005 letter states that D.S. would continue to receive learning accommodations within the Grade 5 program, including preferential seating, additional time during assessment activities, and cueing strategies to maintain attention and ensure understanding. As indicated above, this letter also states that the SPST would support the classroom teacher to provide accommodations and remediation. The evidence of the SPST, the classroom teacher, and the Principal was that this was not intended to signal any change to the level of access to the SPST that D.S. already was receiving. The SPST would continue to work with D.S. in the classroom as she had done prior to October 6, 2005, and would continue to withdraw him and work with him in small groups in the resource room as she had done prior to October 6, 2005.

37The only actual change that was signalled by the October 6, 2005 letter was that D.S. would no longer spend the recess period in the resource room with the SPST. Rather, the plan upon D.S.’s move to full-day attendance was for D.S. to spend his time during recess with the other school children, under the supervision of school staff assigned to supervise the children during recess. The Principal’s letter indicates that D.S. would be instructed to report to a recess supervisor (who would be wearing an orange vest) if he was feeling threatened or vulnerable. D.S. would continue to go into the resource room after being dropped off prior to the start of the school day, and it was recommended that D.S. go home for lunch with pick up and drop off at the school office. D.S. also would be picked up at the end of the day from the school office.

38The question for me at this juncture is whether this proposed alteration in plans represents a denial of required accommodation for D.S.’s disabilities by the respondent. I already have found that the evidence before me is insufficient to establish that D.S. was incapable of full-day attendance because of his disabilities or that he required only half-day attendance because of his disabilities. Similarly, in the reports provided to the school at the time, there is no evidence that D.S. specifically required SPST support because of his disabilities. Mr. Bach’s April 18, 2005 report states only that D.S. “works much better in a one-to-one situation with regular positive feedback, than he does when left on his own to complete his work” and that “clinical experience suggests that initially one must work with a child like [D.S.] at his speed and at a very involved level (i.e. 1-1) much of the time”. He does not say that D.S. needs to work on a one-to-one basis with an SPST as opposed to the classroom teacher, or that D.S. needs to be withdrawn from the class to the resource room for this to happen, or even specify any particular time period during a week that D.S. needs to spend with an SPST because of his disabilities.

39Dr. Albin’s January 2, 2006 report, which was provided after the October 6, 2005 meeting and prior to the IPRC (Identification, Placement and Review Committee) meeting on January 12, 2006, recommends “identification at school with potential resource supports and better coaching and counselling around planning and organizational issues” and that D.S. “needs to have a mentor, teacher or counsellor who helps him review inputs and to plan his homework, assignments and organizational issues”. As with Mr. Bach, Dr. Albin does not say that these supports need to be provided by an SPST as opposed to the classroom teacher or someone else, or that D.S. needs to be withdrawn from the class to the resource room for these recommendations to be implemented, or specify any particular time period during a week that D.S. needs to spend with an SPST because of his disabilities.

40In my view, the evidence before me is insufficient to establish that D.S. required any particular level of SPST support, and particularly is insufficient to establish that D.S. required any particular level of SPST support through withdrawal from the regular classroom. In any event, as a factual matter, I find that D.S. was receiving regular support from the SPST during the time that he attended the school in Grade 5, both in the classroom and through withdrawal to the resource room, and that there was no intention to change this support or a refusal by the school to continue to provide this support at the time of the October 6, 2005 meeting or thereafter. The one change which was proposed, which was that D.S. would no longer be supervised by the SPST during the recess period, in my view does not represent any denial of required accommodation by the respondent for needs arising out of D.S.’s disabilities, particularly given that I find that D.S. was not receiving formal programming or instruction by the SPST during recess and would be under the supervision of assigned staff at recess.

41D.S. did not return to the school following the October 6, 2005 meeting. By letter dated November 18, 2005, D.S.’s parents requested an IPRC meeting for D.S., which was held on January 12, 2006. At this meeting, D.S. was identified as an “exceptional student” within the meaning of the Education Act and was identified as having a learning disability. Various areas of need were identified, and his placement was recorded as “regular class with resource assistance”.

42Subsequently, an Individual Education Plan (“IEP”) was prepared for D.S. by the SPST for review with D.S.’s parents. In the Human Resources section of the IEP, it was indicated that D.S. would receive resource assistance from the SPST in the classroom as required.

43D.S.’s parents objected to the placement decision, and wanted the placement changed to “regular class with resource assistance and regular class with withdrawal assistance”. This was agreed to by the respondent in early March 2006. The evidence before me from the Board’s Superintendent of Special Education is that he agreed to this change in placement, because it reflected what the school in fact had been doing and what the school intended to continue to do.

44This, however, did not resolve the issue for D.S.’s parents, who wanted this change in placement to be reflected in the Human Resources section of the IEP and wanted specific time commitments for withdrawal assistance to be set out in the IEP. A second draft of the IEP stated that D.S. would receive resource assistance from the SPST in the classroom and/or in the resource room a minimum of three times per week. Then, after meeting with D.S.’s parents in early March 2006, the Superintendent prepared a summary of program plans, which indicated that D.S. would receive resource assistance in the classroom and/or alternate setting (such as the resource room or library) a minimum of three times per week by the SPST and a minimum of two times per week by an Educational Assistant (“EA”) under the direction of the SPST and the classroom teacher. This was then incorporated into an IEP dated March 10, 2006.

45D.S.’s parents objected to this level of resource assistance and how it was reflected in the IEP primarily for two reasons. First, they did not believe that there was a sufficient time commitment for withdrawal with the SPST. They wanted withdrawal for a minimum of five times per week for resource assistance with the SPST and wanted the IEP to reflect that this would be for five “periods” per week as opposed to five “times”. Second, they wanted the IEP to commit to the location of this resource assistance to be outside of the regular classroom. The respondent was not prepared to make these changes to the IEP.

46At the end of the day, the issue for me is whether the respondent’s refusal to provide the commitments for withdrawal time with the SPST as requested by D.S.’s parents amounts to a refusal to provide appropriate accommodation required by D.S.’s disabilities. This has not been established on the basis of the evidence before me. As already indicated above, the evidence before me is insufficient to establish that D.S. required any particular level of SPST support, and particularly is insufficient to establish that D.S. required any particular level of SPST support through withdrawal from the regular classroom. Accordingly, in my view, there is no proper basis in the evidence to support a finding that, by denying the parents’ requests for specific commitments to withdrawal by the SPST, the respondent denied an accommodation that was required because of D.S.’s disabilities.

47As a result, I find no violation of the Code arising out of this issue.

c) Alleged failure to implement Dr. Albin recommendations

48The third issue raised by L.S. relates to the alleged failure of the respondent Board to commit to implementing the recommendations made by Dr. Albin in his report dated January 2, 2006. In her evidence before me, L.S. stated that while the Board never expressly refused to implement these recommendations, the Board never specifically committed to implementing them in sufficient detail in the IEP or in the proposals made by the Superintendent.

49On the basis of the evidence before me, I am unable to accept L.S.’s position in this matter. In fact, in my view, the evidence before me indicates that the respondent Board was implementing or intended to implement substantially all of Dr. Albin’s recommendations.

50The first recommendation made in Dr. Albin’s report is that D.S. be classified within the educational designation of having a communications learning disability. This was done by the Board at the IPRC meeting on January 12, 2006. In my view, it is notable that prior to receipt of Dr. Albin’s report, the respondent did not have a clear diagnosis of any significant learning disability for D.S. from any medical or health professional. As noted above, Dr. Kerr’s March 2003 report stated that there was no strong evidence for a learning disability, although Dr. Kerr diagnosed D.S. with a mild visual – spatial learning disability and indicated that it was possible that D.S. had mild dyslexia – phonics. In his April 18, 2005 report, Mr. Bach found that the results of his assessment were consistent with the information provided by Dr. Kerr in 2003. Mr. Bach does not provide any clear diagnosis of D.S. having a significant learning disability. As a result, in my view, the respondent acted fairly quickly upon the first clear diagnosis that it was presented with in designating D.S. as having a communications learning disability.

51Dr. Albin’s first recommendation that is applicable to the school setting is that there be “identification at school with potential resource supports and better coaching and counselling around planning and organizational skills”. It is not entirely clear to me what Dr. Albin intended by this recommendation, and he was not called to testify before me to clarify his intention. As reviewed above, when D.S. was attending the school in September and early October 2005, he was receiving resource support from the SPST both in the classroom and through withdrawal in small groups to the resource room. In addition, the classroom teacher was providing support for D.S., and was acknowledged by L.S. as having done an “excellent job” while D.S. was in her classroom. L.S. also expressed that she felt that D.S. was “well-supported” in his Grade 5 teacher’s classroom.

52The IEP prepared for D.S. recognized “organizational skills” as an area of need, and included a number of accommodations that would address this area, including “notebook organization assistance”, “encourage oral discussion prior to writing tasks and before and after reading tasks”, and “provide opportunities for review and reinforcement when teaching new concepts”. The proposed education program for English Language instruction included the use of strategies such as “modelling and graphic organizers”, “‘wh’ questioning” and “highlight key words and information”. In my view, the accommodations and strategies proposed in the IEP indicate that the school was taking Dr. Albin’s recommendation seriously and was proposing to implement his recommendation by providing resource support and coaching around planning and organizational skills, particularly in the English Language area.

53Dr. Albin’s next recommendation is that D.S. receive “inputs that deal with both writing and math disability issues”. Once again, I find Dr. Albin’s language rather opaque and was not assisted by having his testimony before me. Dr. Albin makes two specific recommendations in this area. The first is that Dr. Albin believed that D.S. had “all kinds of potential to learn word processing skills, typing and writing skills through computerization” and he referenced “software that is available for writing [to] assist him to get his thoughts on paper and to facilitate and organize these thoughts into written essays and compositions”. Dr. Albin concludes by stating that he is “strongly recommending that this should be considered at the school level for [D.S.]”

54The evidence before me indicates that the respondent acted on this recommendation. Later drafts of the IEP indicated that the school would trial adaptive computer technology for D.S. The summary of program plans prepared by the Superintendent stated that D.S. would use a compatible word processing program between home and school (Star Office), that D.S. would be provided with an Epals student e-mail account so that he could access saved work at home and school, and that the respondent would consider technology to engage D.S. This, in my view, is precisely what Dr. Albin recommended.

55The second specific recommendation is that D.S. could “also benefit from having math resourcing to help him learn math calculations, computations and to have some aspects of both writing and mathematics area programs modified because of his exceptional problems therein.” The evidence indicates that while he was attending school in Grade 5, D.S. was regularly being withdrawn to the resource room by the SPST for assistance with math. The final version of the IEP identified “numeracy: computation, problem solving, understanding, application and communication” and “receptive and expressive language – comprehension and written communication” as areas of need. It was proposed as a goal for English Language on the IEP that D.S. would demonstrate improvement in reading comprehension and written comprehension at the Grade 4 level as outlined in the Ontario curriculum, which is a modification from the usual expectation for a Grade 5 student. In my view, this recommendation was being acted upon when D.S. was in attendance at the school and was intended by the respondent to be acted upon had D.S. returned to school.

56Dr. Albin next references a number of specific accommodation needs for D.S. He states that D.S. needed preferential seating. This was being implemented while D.S. was at the school, and was confirmed in the IEP. Dr. Albin states that D.S. needed extra time for some tests. This too was being implemented while D.S. was at the school, and was confirmed in the IEP. Dr. Albin states that D.S. needed to have some special location, such as a study carrel or cubicle, to complete assignments. The school did not regard having D.S. in a study carrel or cubicle while in the regular classroom to be appropriate, as this would isolate him and single him out from his peers. I share this concern. In the IEP, the respondent proposed as an accommodation to provide D.S. with a quiet location, free from distractions as needed. In my view, this substantially responded to Dr. Albin’s recommendation.

57Dr. Albin states that D.S. needed to have a mentor, teacher, or counsellor who helps him review inputs and to plan his homework, assignments, and organizational issues. There are a number of proposed accommodations in the IEP that speak to this recommendation, including “notebook organization assistance”, “assistance obtaining assignments and copying information from the blackboard”, “clarify definitions, terms and vocabulary in assignments and ensure that student understands by asking him to restate or paraphrase the instructions”, “repeat / rephrase instructions”, “consistency in use of specific terms / directions”, among others. In my view, the respondent proposed to substantially implement this recommendation.

58Dr. Albin states that D.S. also needed to have some “ecological protections” at school due to his lack of social interaction skills and tendency to misread social cues, which made him a target for other children. Once again, this recommendation was acted upon by the school. This issue was raised by the parents with the school at the meeting in April 2005 prior to D.S.’s return in September 2005, and a safety plan was put into place. On October 6, 2005, the school proposed to modify this plan to a certain extent in order to allow D.S. to participate in recess rather than being in the resource room. D.S. was to raise any problems or concerns with the supervising teacher assigned to monitor recess. In my view, this was not unreasonable. In the Superintendent’s summary of program plans, measures were proposed that included D.S. checking in with the yard supervisor before school and at recess, making yard supervisors aware of D.S.’s needs relating to challenges associated with social situations and peer interactions, having a social worker work with school staff to monitor challenges relating to social situations, and considering a “buddy system” for recess and bus stop. In my view, the respondent had been implementing this recommendation during the time D.S. was attending the school in Grade 5, and proposed to continue to substantially implement this recommendation had D.S. returned to school.

59Accordingly, based on the evidence before me, I find that the respondent did not substantially fail or refuse to implement the recommendations set out in Dr. Albin’s report. As a result, I find no violation of the Code arising out of this allegation.

d) Other issues

60There are a number of other issues raised by the Commission and L.S. in their evidence and submissions. It is not necessary for me in this Decision to address all of the many disputes regarding the factual evidence or the interpretation of that evidence, or what the respondent and its employees might have done better. The sole issue for me is whether the respondent’s actions violated the Code by discriminating against D.S. because of his disabilities and by failing to provide him with proper accommodation for needs arising from his disabilities. This requires reliable evidence as to specific “needs” that D.S. had arising from his disabilities, and particularization as to specifically what it is that the respondent failed or refused to do to meet those needs. As I have indicated above in relation to D.S., there is either a lack of adequate evidence to support that what his parents wanted the school to do arose from “needs” relating to D.S.’s disabilities, or a lack of adequate evidence that the respondent failed or refused to meet those needs.

61There are a few issues that I wish to address before concluding my discussion and findings regarding D.S. Objection is taken by the Commission and L.S. to a statement made by the Principal in his October 6, 2005 letter that “based on the information currently available, the school is not seeking to identify [D.S.] as an exceptional learner”. The Principal testified that this statement was made based upon the reports that were in the school’s possession at the time, which were Mr. Bach’s reports and the audiologist’s report. As I have reviewed above, neither of those reports clearly diagnoses D.S. as having any significant learning disability. A clear and reasoned diagnosis in this regard did not appear until Dr. Albin’s report dated January 2, 2006, after which D.S. was quickly identified as having an exceptionality.

62However, the issue of whether or not a child is an “exceptional student” as that term is defined under the Education Act is not co-extensive with the issue of whether that child has a “disability” within the meaning of the Code even where that child’s disability requires accommodation under the Code. To take a simple example, a child with a mobility impairment may not require placement in a special education program, but may nonetheless require accommodation to access school services. Similarly, a child who is gifted and thereby may be designated as an “exceptional student” under the Education Act and require a special education program is not likely to be regarded as having a “disability” under the Code.

63As stated above, the issue before me is not whether D.S. ought to have been regarded as an “exceptional student” under the Education Act, but whether the needs arising out of D.S.’s disabilities were properly accommodated by the respondent. Accommodation of a disability does not necessarily require a child to be designated as an “exceptional student”. In this case, while the Principal indicated that the school was not seeking to have D.S. identified as an exceptional student based on the information then available, his letter nonetheless made clear that D.S. would continue to receive learning accommodations within the Grade 5 program. In order for the Commission and L.S. to establish that D.S. was experiencing discrimination because of his disabilities in violation of the Code, it is their onus to provide adequate evidence as to D.S.’s needs arising out of his disabilities, and specifically how these needs were not being properly accommodated. It is in relation to these issues that I have found the evidence before me to be lacking.

64Similarly, an issue arose in this proceeding regarding whether or not the October 6, 2005 meeting ought to have been an IPRC meeting. The evidence before me indicates that at the time of the April 25, 2005 meeting, it was decided by all parties that they would meet again after D.S. had been in school for a few weeks to review his progress. The respondent’s witnesses all testified that this was the purpose of the October 6, 2005 meeting. There is correspondence from L.S. sent prior to this meeting in which she refers to it as an IPRC meeting. The Principal was aware of this, but did not understand this to be a parental request for an IPRC meeting as contemplated in the Regulations under the Education Act. He thought L.S. may simply have been using the incorrect terminology.

65In my view, under the Code, it is irrelevant whether or not the October 6, 2005 meeting ought to have been a formal IPRC meeting or whether L.S.’s prior correspondence ought to have been regarded as a parental request for a formal IPRC meeting. The issue before me is whether the needs arising from D.S.’s disabilities were properly identified to the respondent by D.S.’s parents and properly accommodated by the Board, not whether the meeting ought to have been an IPRC meeting. As I have found above, D.S. was being properly accommodated for his needs as they were evidenced and known to the respondent at the time, and the respondent subsequently proposed to provide proper accommodation for D.S.’s disability-related needs as they were known and evidenced had his parents decided to return him to the school.

66An issue was raised regarding the recommendation by the audiologist in her May 11, 2005 report that D.S. required an FM system to increase the speech to noise ratio in the classroom. The evidence indicates that the possibility that this might be beneficial to D.S. was discussed at the April 25, 2005 meeting. However, as I have found above, the preponderance of evidence indicates that the audiologist’s report was not provided to the school until early September 2005. Given the brief period of time that D.S. was attending the school before he was withdrawn following the October 6, 2005 meeting, I do not find it unreasonable that the respondent had not yet acted upon this recommendation. In subsequent discussions with the Superintendent, a commitment was made in early March 2006 for an audiologist to review D.S.’s Central Auditory Processing assessment prior to the end of the school year to determine whether or not D.S. should participate in a trial for an FM system. D.S.’s parents were advised that there is normally a six month wait for FM system trials for students, such that the trial would take place in approximately February 2007 or sooner if possible. This does not represent a denial of accommodation, but rather the need for Board review and a delay in implementing a trial of the system. In my view, this does not amount to a denial of accommodation by the respondent in violation of the Code.

67I am well aware that the duty to accommodate has both a substantive and a procedural component, and so far I have focused primarily on the substantive component of this duty. I also find that there was no violation of the procedural component of the duty to accommodate. There were extensive discussions between the respondent Board and D.S.’s parents and various professionals and advocates throughout the events at issue. Compliance with the procedural aspect of the duty to accommodate does not require a respondent to provide an applicant with everything that she or he requests. Rather, it requires that there be discussion and consideration of how to accommodate the person’s disability-related needs. While the Principal’s approach at the October 6, 2005 meeting and his tone in the October 6, 2005 letter may have been more direct and blunt than necessary, particularly in light of the view of D.S.’s parents that he had agreed to allow their child to attend school for half-days for six to ten months, I do not find that this rises to the level of a breach of the procedural component of the duty to accommodate, especially in view of the significant discussion and engagement on these issues that occurred subsequently.

68Accordingly, for all of the foregoing reasons, I find that the respondent did not violate D.S.’s rights under the Code.

A.C. Complaint

1) Nature of A.C.’s disabilities

69A.C. was 11 years old at the time the complaint was filed. In 2001, when A.C. was six years old, he was assessed with Attention Deficit Hyperactivity Disorder – primarily inattentive type. His overall cognitive abilities were assessed in the high average range, although his ability to process simple or routine visual material was in the average range of functioning, his performance on basic reading fell within the low average range, and reading comprehension within the below average range. While A.C. exhibited some characteristics of children with specific learning disabilities, it was felt at that time that such a diagnosis was premature.

70A.C. was assessed again by Dr. Albin in 2005, when he was 10 years old. While it was observed that he functioned well within the average range of intellectual ability with some interesting strengths and competencies, it was found that he displayed extensive struggles in writing and writing integration. As a result, A.C. was formally diagnosed at this time with a Communications Learning Disability, with complications because of his attention deficit features.

71A.C. was identified by the school in June 2003 as an exceptional learner, as ADD inattentive and with a learning disability, and this identification remained largely consistent throughout the period of time relevant to the issues raised in this proceeding.

72On the basis of the evidence before me, the respondent does not take issue with the fact that A.C. had a disability within the meaning of the Code at the material time.

2) Allegations re lack of accommodation

73As with D.S.’s litigation guardian, I also summarized P.S.-C.’s allegations of a lack of proper accommodation of A.C.’s disabilities at the conclusion of her evidence in chief in this proceeding. While P.S.-C. identified four allegations, for the purpose of this Decision I have grouped these allegations into two areas: (1) the allegation that A.C.’s teachers failed to consistently accommodate his needs by “chunking” (which involves breaking down a task or assignment into smaller component parts), using “mind maps” (which are an aid to organizing thoughts for writing), and addressing other organizational issues; and (2) by failing to provide A.C. with adaptive technology in a timely manner.

a) Chunking, mind maps and organizational assistance

74On the basis of my earlier Interim Decision in this matter, the relevant school years at issue in this proceeding as it relates to A.C. are 2004-05 when he was in Grade 5 and 2005-06 when he was in Grade 6.

75The 2003-04 school year, when A.C. was in Grade 4, was regarded by P.S.-C. as a year in which A.C.’s needs were properly accommodated. The evidence of A.C.’s Grade 4 teacher was that she provided a range of accommodations for A.C.’s needs that year, which included breaking down some assignments into appropriate chunks so that A.C. could focus on one task at a time and experience success; sitting with A.C. and helping him brainstorm and organize his thoughts and ideas by scribing for him or encouraging him to jot down simple key words so that he could take these ideas and create a story or alternate piece of writing; providing a structured environment with a homework planner and regular communication with A.C.’s parents; and providing extensive organizational coaching for A.C. During that school year, there also was an Educational Assistant in A.C.’s class who was assigned to two other students with special needs, but who also provided significant assistance to A.C.

76During this school year, the comments by A.C.’s parents in response to his report cards were very positive. They thanked the Grade 4 teacher for all of the attention that she had given to A.C., and indicated that they were very happy with A.C.’s progress due to the input and support of his Grade 4 teacher and the EA. At the end of this school year, A.C.’s parents thanked the Grade 4 teacher and the EA for all of their extra hard work and dedication in helping A.C. adjust and in tremendously decreasing his anxieties. A.C.’s parents recognized that they could not ask the Grade 4 teacher to move up to Grade 5 to teach A.C. again, but did ask that A.C. be put into a class with the same EA. This was done by the school.

77During the 2004-05 school year, when A.C. was in Grade 5, A.C. had two Grade 5 teachers, as his first Grade 5 teacher went on maternity leave at the end of 2004. The evidence of A.C.’s first Grade 5 teacher is that prior to the commencement of the school year she met with the SPST to review the accommodations that had been provided to A.C. the previous year. Her evidence is that she continued to provide these accommodations to A.C. Her evidence is that either she or the EA would often work with A.C. on a one-to-one basis to ensure that he understood the lesson and see if he required clarification, with the teacher usually working with A.C. on his math skills and the EA usually working with him on language skills. She states that, among other things, she chunked assignments so that A.C. could meet success in small components and not be overwhelmed; provided A.C. with a structured environment, giving clear direction and repeating lessons; provided A.C. with photocopied notes because it was difficult for him to track notes on the board, and also provided him with study notes so that he could maximize success; and regularly communicated with A.C.’s parents through his agenda.

78The evidence of A.C.’s second Grade 5 teacher, who took over teaching the class in January 2005, is that she met with the first Grade 5 teacher and with the SPST beforehand to discuss A.C.’s needs and that she continued to implement the required accommodations. Among other things, this teacher states that she chunked assignments with achievable goals so that A.C. could complete assignments in pieces to maximize success; scribed for A.C. by writing down his thoughts and helping him organize those thoughts prior to A.C. accessing the computer; because A.C. struggled with writing, often allowed him to respond to tests verbally rather than in writing; provided A.C. with study notes and assisted him by highlighting key words for emphasis; and provided A.C. with a structured environment.

79In relation to the allegations raised by P.S.-C., I asked whether she could provide any specific instances or examples from A.C.’s Grade 5 year when he had not been properly accommodated due to a failure to “chunk” an assignment, do “mind maps” to assist with writing, or to address other organizational issues. P.S.-C. was unable to provide me with any such specific examples. P.S.-C. acknowledged on cross-examination that she had not been present in A.C.’s Grade 5 classroom, and so was not aware of the full extent of the accommodations provided to him by his Grade 5 teachers. In my view, in light of the extensive accommodations provided to A.C. by his Grade 5 teachers and in the absence of any specific examples of any failure to provide required accommodations, I find that the evidence does not support that the respondent failed to provide A.C. with required accommodations during the 2004-05 school year.

80The evidence of A.C.’s Grade 6 teacher is that all of these accommodations continued during the 2005-06 school year. Among other things, A.C.’s Grade 6 teacher provided a structured environment, with a homework planner that would be completed daily and later in the year with a communications book that was prepared by the teacher and sent home regularly to A.C.’s parents; assisted A.C. by chunking and sub-dividing an assignment into sub-tasks that were more manageable for him; provided access to photocopied notes and monitored A.C.’s notes and provided photocopied resources if there were gaps; on numerous occasions, provided after school assistance to A.C. to work on homework or assignments; clarified assignments; helped him with visual organizers to plan written work; and provided support to him. The Grade 6 teacher had retained some examples of A.C.’s written work and preliminary drafts, which demonstrated the use of “mind maps” and other visual organizers to aid in A.C.’s written work.

81With regard to the Grade 6 school year, P.S.-C. identified three specific occasions when she alleges that A.C.’s needs were not properly accommodated. The first instance relates to a speech that A.C. was unable to complete during that year. The Grade 6 teacher had a clear and specific recollection of this issue, with A.C.’s initial desire to write a speech about ketchup and then becoming frustrated at his lack of ideas to support a full speech on this topic. The Grade 6 teacher then suggested that he re-focus his speech to the Heinz company, and tried to assist by chunking the assignment into smaller components. However, A.C. did not complete the assignment, and at a certain point the Grade 6 teacher had to let it go. The second instance relates to a project on Taiwan, which the Grade 6 teacher states was chunked into parts and ultimately completed by A.C. The third instance, which was recorded in the communications book, relates to an occasion when there was a supply teacher who failed to ensure that A.C.’s notebooks made it home with him so that he could complete his homework.

82I do not wish to minimize the significance of these three issues, which may indeed have been a source of upset for A.C. and/or his parents at the time. However, I fail to see these issues as providing support for a finding that A.C.’s needs were not properly accommodated, particularly in light of the extensive accommodations that were made by the Grade 6 teacher throughout the school year. Indeed, in my view, the Grade 6 teacher displayed commendable commitment and caring to A.C. and went above and beyond what is expected of a teacher through the after school assistance that he provided to A.C. Once again, I find that the evidence does not support that A.C.’s needs were not properly accommodated during the 2005-06 school year.

83One aspect of the evidence that appeared to be particularly concerning to P.S.-C. was the evidence from Dr. Albin’s report in July 2005 that, by this time, A.C. had fallen two years behind in his basic writing skills, writing samples, and editing (while P.S.-C. submitted that A.C. had fallen three years behind, in fact his age at the time of testing was 10 years, 8 months, and his age equivalence on basic writing skills was 8 years, 8 months, on writing samples was 8 years, 7 months, and on editing was 8 years, 4 months). P.S.-C. contrasted this with a report from 2005, which shows that at that time A.C. was only one year behind in basic writing skills.

84No expert evidence was called by the Commission or the complainants to explain the significance, if any, of these results in the context of A.C.’s specific learning disability. For example, it is unclear to me whether, as children get older and age appropriate expectations around written language skills increase, it is to be expected that there will be a larger gap for a child whose particular disability causes him to struggle with writing and writing integration. I also note the evidence of A.C.’s teachers that he was being graded at school based on the results he achieved with the accommodations he was receiving, whereas it appears that he was being tested outside the school without these accommodations.

85However, more fundamentally, I cannot properly conclude simply on the basis that a gap in basic writing skills had grown over the course of two years that this proves that A.C.’s disability-related needs were not being appropriately accommodated. To draw such a conclusion would, in my view, conflate a child’s results or achievement levels with the process of accommodating the child’s needs in the classroom. It may be that, despite these needs being appropriately accommodated, the child simply may not be capable of achieving age appropriate results. It may be that, while not achieving age appropriate results without accommodation, the child nonetheless is capable of meeting the curriculum standards for his grade with accommodation, as is the assessment of A.C.’s teachers here.

86As I have said earlier, in order for me to find that A.C.’s needs were not properly accommodated by the respondent, I need to have evidence regarding some specific accommodation required due to a need arising from A.C.’s learning or other disabilities, and evidence that this specific accommodation was not provided. In relation to the specific accommodations that P.S.-C. identified to me at the conclusion of her evidence in chief as being the basis of her allegations in this case, I find that the evidence does not support that there was a failure to provide these accommodations.

b) Adaptive technology

87The next allegation is that A.C. did not receive timely access to adaptive technology.

88The first medical report in which adaptive technology is recommended for A.C. is Dr. Albin’s report dated July 5, 2005. In this report, Dr. Albin strongly recommends that technological reports be considered for writing issues. He expresses his belief that the school team should apply for ISA funding for a laptop computer for A.C. to use. Dr. Albin notes that A.C. had difficulty with his spelling, and that computerization would assist with this. He also expresses his belief that it would become mandatory for A.C. to be using word processing and computerized skills by the time he reaches the upper grades and high school.

89In fact, as early as Grade 4 (or during the 2003-04 school year), A.C. had been using a computer program at the school called Word Q, which was described to me in evidence as word predictor software that anticipates the word a child may be searching for. A.C.’s Grade 4 teacher states that A.C. would use this program to assist him with his writing and to reinforce his spelling and grammar skills. A.C. used this program to write journal entries, which he would print and paste into his journal. A.C. continued to work with this computer program in Grade 5 during the 2004-05 school year to help develop his writing skills. In evidence before me, A.C.’s teachers described him as reluctant to use this technology in the regular classroom, as he did not want to be singled out, but he had access to the resource room to use it under the guidance of the SPST.

90Following receipt of Dr. Albin’s report, an IEP was prepared for A.C. that set out a number of technology-related accommodations. These included that A.C. would have access to Kurzweil (software that allows text to be scanned and then read to the child) to read and complete lengthy assignments, and that ongoing support and guidance would be provided to use adaptive computer technology when appropriate for organization of written material and presentation of lengthy written material. In this latter context, reference was made to Word Q, Smart Ideas, and/or Inspiration software (I understand from the evidence that these latter two pieces of software function in a manner akin to “mind maps”, by aiding the child to brainstorm ideas for writing and then organize them in a coherent fashion). In a section of the IEP titled “Individualized Equipment”, it is stated that a trial period for access to adaptive computer technology for written communication would begin in the fall of 2005.

91It appears from the evidence before me that the trial period for adaptive technology for A.C. in fact did not begin until April 2006. At this time, two specific pieces of software were trialed. The first is called Speak Q, which is voice recognition software that allows the child to verbalize thoughts which are then transcribed by the computer. In order for this software to function properly, it needs to be able to recognize the child’s voice and transcribe what is being said accurately. A.C. had difficulty in using this software. The report from the trial of this software indicates that one typically looks for an 85% to 90% accuracy rate in transcribing what is said. In A.C.’s case, the accuracy rate was only 10%. As a result, the recommendation was that at that time, Word Q was more appropriate software for A.C. to be using. It was recommended that A.C. wait until high school and then re-assess whether speech-to-text software may be a useful tool for him. (At this juncture, I note that while P.S.-C. made reference in this proceeding to another kind of speech-to-text software named Dragon Naturally, there is no evidence before me to indicate that A.C. would have been any more successful with this software than he was with Speak Q).

92The next software that was trialed for A.C. is Inspiration. A.C. was much more successful with this software. As a result, it was recommended that A.C. have access to Inspiration for independent brainstorming, organizing, and composing writing assignments and study notes.

93As a result, a form was completed by the school for A.C. to receive adaptive technology, including a desktop computer, scanner, computer desk, black and white printer, headset, power bar, and memory stick, and the software programs Kurzweil, Word Q, Inspiration, and Speak Q. All of this adaptive technology was delivered to the school for the 2006-07 school year, when A.C. was in Grade 7. The events of A.C.’s Grade 7 school year post-date his complaint and are beyond the scope of this proceeding. It was explained to me in evidence that Speak Q was ordered for A.C. despite the unsuccessful trial because ISA claims can only be made at certain intervals, such that the school needs to anticipate a student’s future needs.

94In the end, the issue before me comes down to this: does a six month delay in trialing software for A.C. amount to a denial of accommodation for his disability-related needs in violation of the Code? In my view, prior to Dr. Albin’s report, there is no evidence before me to support that adaptive technology was required as an accommodation for A.C. In any event, during this period, the evidence indicates that A.C. had access to and was using Word Q, which was subsequently confirmed as more appropriate software for him.

95I accept the evidence before me that Speak Q was not appropriate software for A.C. at the time due to the very low accuracy rate in recognizing and transcribing his speech. As a result, I do not find that any delay in trialing this software for A.C. amounts to a failure to provide appropriate accommodation. P.S.-C.’s evidence is that A.C. did not require Kurzweil software due to his disabilities, as his problems were with writing as opposed to reading. And A.C. already had been using Word Q software for at least the prior two years.

96This leaves us with the delay in trialing Inspiration software. I do not wish to denigrate technology and the important assistance it can provide to persons with disabilities. At the same time, in my view, it is important to examine the substance of what this software is actually doing, and assess whether the substance of what the software is intended to do is already being accomplished by other means. In this case, as I have indicated above, Inspiration software assists a child like A.C. by allowing him to brainstorm and get his ideas onto the screen and then to organize and expand upon these ideas in a piece of writing. This process is very similar to what A.C.’s Grade 6 teacher was doing with him in creating “mind maps” or “spoke and wheel” visualizations to aid in developing a piece of writing, with one important difference. In the non-technological process, A.C.’s Grade 6 teacher also would be there to help A.C. to generate the ideas that he would write down on a piece of paper (or if using Inspiration, would type onto the screen).

97Based on the evidence before me, the substance of the accommodation that A.C. required for his writing and writing integration difficulties was this process of assisting him in generating ideas, getting these ideas down onto paper or a computer screen, and then organizing and expanding upon these ideas in a piece of writing. In my view, based upon what was being done by A.C.’s Grade 6 teacher, the substance of this accommodation already was being provided to A.C. throughout the 2005-06 school year, even without access to Inspiration. Accordingly, in my view, the delay in trialing Inspiration software did not deprive A.C. of the substance of the accommodation he required, and, as a result, I find no violation of the Code arising from this delay.

98Nor do I find any violation of the Code arising out of the timing of the application of computer equipment for A.C. Clearly, A.C. had access to computer equipment at the school both in the classroom and in the resource room. The evidence before me does not indicate that there was any issue in A.C. gaining access to this equipment when needed, other than A.C.’s own understandable reluctance to use the computer in class for fear of being singled out.

c) Other issues

99A number of other issues were raised by P.S.-C. in her evidence and submissions.

100One issue that was raised involves a change in the format for the IEP used by the school for A.C. from the 2003-04 school year (when he was in Grade 4) to the 2004-05 and 2005-06 school years (when he was in Grades 5 and 6). The 2003-04 IEP for A.C. set out the accommodations that he would be receiving in four separate categories: all program areas; behaviour; social skills; and self-advocacy. In each of these areas, the accommodations provided were broken down into a series of learning expectations, teaching strategies or accommodations, and assessment / evaluation and reporting. Commencing in the 2004-05 school year, the school moved to a leaner IEP for A.C. which set out instructional accommodations, environmental accommodations, and assessment accommodations.

101The respondent’s evidence is that this leaner form of IEP was mandated by the Ministry of Education. The evidence before me is inconsistent on this point, as it appears that a longer form of IEP was used in 2005-06 for D.S. and in 2004-05 for a student at another school in the respondent Board.

102In my view, it is of little import whether or not the use of any new leaner form of IEP was mandated by the Ministry. The issue for me under the Code is whether the use of the leaner form of IEP in Grades 5 and 6 resulted in any denial of accommodations required by A.C. due to his disabilities. In my view, this is simply not supported by the evidence. The evidence of A.C.’s Grade 4 teacher set out the accommodations that she was providing to A.C. in detail. The evidence of A.C.’s Grade 5 teachers is that these accommodations were continued, and their evidence set out in detail the accommodations that they were providing for A.C. While the teachers use slightly different words to describe the accommodations they were providing for A.C., in my view, the substance of these accommodations was consistent, particularly in the key areas identified by P.S.-C. as being deficient. In addition, as noted above, I have no specific evidence before me of instances during the Grade 5 school year when it is alleged that A.C.’s needs were not being met.

103I make the same observation regarding the accommodations received by A.C. during the Grade 6 school year, which were consistent with the accommodations he had received in Grades 4 and 5. Indeed, as I have observed above, A.C.’s Grade 6 teacher went above and beyond what is required of a teacher to provide additional support and assistance to A.C. after school hours. I have found that the specific instances of alleged lack of accommodation cited by P.S.-C. in her evidence do not represent a failure to provide accommodation for A.C.’s disabilities as required by the Code. As a result, in my view, the change in form of the IEP did not diminish the accommodations being provided to A.C. in Grades 5 and 6.

104An issue also is raised by P.S.-C. regarding the failure to withdraw A.C. from the regular classroom to the resource room for assistance with his writing and writing integration, even after A.C.’s placement was changed to “regular class with resource assistance and regular class with withdrawal support” in March 2006. However, as with D.S., the medical evidence before me does not support that withdrawal from the regular classroom to receive resource assistance with writing and writing integration was required to accommodate A.C.’s disabilities. In his report dated July 5, 2005, Dr. Albin strongly recommends that A.C. receive “some resource support and some further guidance with regards to writing and writing integration tasks”. Dr. Albin does not specify in his report that this support and guidance is to be provided outside of the regular classroom. In his note of the October 4, 2005 meeting, Dr. Albin states that he “understood that [A.C.] would get some special resource consultations to deal with writing”, once again without specifying where these consultations were to take place. Dr. Albin was not called as a witness before me to clarify this point or to provide evidence that withdrawal of A.C. to the resource room was required because of his disabilities.

105I note further that as part of the accommodations being provided to A.C., he was in fact being withdrawn to the resource room as required. In Grade 4, when P.S.-C. acknowledges that A.C.’s needs were being met, his teacher states that the resource room was available and used from time to time for A.C. to work without distractions and that the SPST took smaller groups including A.C. into the resource room to complete assignments or to write tests. This accommodation continued in Grade 5. Both of A.C.’s Grade 5 teachers state that the SPST withdrew A.C. from the class with other students to provide additional support and that A.C. went to the resource room to write tests and complete assignments when he required additional time or a quiet place to work. A.C.’s Grade 6 teacher states that the SPST would assist A.C. as required in the class and outside the class and that the resource room was available and used from time to time for A.C. to work without distractions and to be provided with additional time as required. As a result, based on the evidence before me, there was no diminishment of access by A.C. to the assistance of the SPST and withdrawal to the resource room during the period from Grade 4 to Grade 6.

106P.S.-C. raises the issue that the respondent did not modify A.C.’s language program when he was in Grades 5 and 6 at the school. The evidence of A.C.’s teachers was that, with the accommodations provided, A.C. was able to manage the Grade 5 and 6 curriculum. While A.C.’s grades did go down in reading and writing from Grade 4 to Grade 6, from final grades of B and B- in Grade 4 to final grades of C+ and B in Grade 5 to final grades of C+ and C in Grade 6, the evidence of his teachers was that he was nonetheless still able to manage the regular curriculum for those grades and did not require a modified program (which would mean teaching a curriculum from a lower grade level). More significantly, there is no medical evidence before me to establish that A.C. required a modified curriculum as an accommodation for his disabilities. No such recommendation is made in Dr. Albin’s report of July 5, 2005, nor does Dr. Albin’s letter regarding the October 4, 2005 meeting indicate that this was required. I understand from P.S.-C. that when A.C. transferred to a school in the public school board for Grade 8, his language program was modified to the Grade 6 level. I do not know whether new medical evidence was provided to the public school board at that time to support this as a required accommodation. In any event, the fact that A.C.’s language program was subsequently modified does not establish that this was a required accommodation during the 2004-05 and 2005-06 school years, based on the medical evidence before me.

107P.S.-C. asserts in her final submissions that the “scaffolding” and intense support provided for A.C. during the 2003-04 school year when he was in Grade 4 was withdrawn for Grades 5 and 6. As I already have reviewed above, this is not supported by the evidence before me, which indicates that the accommodations provided in Grade 4 continued in Grades 5 and 6. P.S.-C.’s concern appears to be that A.C. was not progressing during these years and still required significant support with his writing and writing integration and was not able to write independently. It may well be that A.C. continued to struggle with his writing and writing integration during these school years, and that he still required significant support from his teachers and the SPST. But that is not evidence that he was being denied required accommodation. The evidence of the teachers before me is that they were trying to establish “scaffolding” for A.C. so that he eventually could be able to learn to write more independently. What is lacking here is any evidence as to specifically what more it is that these teachers ought to have done to achieve this goal more quickly. It is trite to observe that “more” could always be done to assist a student with a learning disability. But that is a different question than the issue before me, which is whether there is evidence to support a specific need for accommodation arising out of A.C.’s disabilities that was denied or not met by the respondent. I do not find that such a conclusion is supported by the evidence before me.

108P.S.-C. submits that the accommodations provided for A.C. only addressed his ADHD and did not address his learning disability. With respect, I do not believe that such a contention is supported by the evidence. There is no doubt that some accommodations provided by A.C.’s teachers addressed his need to maintain attention and focus, which are symptoms of his ADHD. These include preferential seating, cueing, repetition of instructions, and setting behavioural expectations. But other accommodations provided to A.C. by his teachers were directly focused on his learning disability and particularly his struggles with writing and writing integration, such as chunking assignments; use of mind maps and other visual techniques to assist in his writing; providing additional time to complete tests or assignments; providing notes; and allowing flexibility in the number of questions answered.

109P.S.-C. also contends that A.C.’s Grade 5 and 6 teachers only used standard, common teaching techniques rather than providing the specialized accommodation that A.C. required because of his disabilities. Once again, with respect, this is not supported by the evidence. While it may be accurate to observe that all students, from time to time, may benefit from such things as cueing or preferential seating, repetition of instructions or setting behavioural expectations, that is different from having a student like A.C. who requires these accommodations because of a disability. With the former group, no issue of accommodation for a disability arises. With A.C., these accommodations were required because of the nature of one of his disabilities, namely ADHD, and I have found that they were provided throughout Grades 4, 5, and 6. With regard to the accommodations provided for A.C.’s learning disability, in my view the accommodations provided to A.C. are not the kind of accommodations typically or generally provided to all students but were tailored to A.C.’s needs.

110Reference is made in the submissions of the Commission and P.S.-C. to the evidence of the respondent witnesses that there were students with disabilities in A.C.’s classes who had higher needs than A.C. I agree with the Commission and P.S.-C. that the fact that there are other students with disabilities in a class who require a high level of accommodation does not absolve the respondent from its duty under the Code to accommodate A.C.’s disability-related needs, short of evidence of undue hardship which was not provided by the respondent. That said, the focus in this proceeding is on whether A.C.’s disability-related needs were accommodated by the respondent during Grades 5 and 6. I have found that they were, and that there is insufficient evidence before me to support that any specific required accommodation was denied or not provided.

111Finally, as with D.S.’s complaint, I find that there was no violation of the procedural component of the duty to accommodate. There were extensive discussions between the respondent Board and A.C.’s parents and various professionals and advocates throughout the events at issue. As I have said above, compliance with the procedural aspect of the duty to accommodate does not require a respondent to provide an applicant with everything that she or he requests. Rather, it requires that there be discussion and consideration of how to accommodate the person’s disability-related needs. With regard to A.C.’s needs, I find that there was extensive consultation and discussion with A.C.’s parents in relation to A.C.’s required accommodations and the various IEPs prepared over the years, and extensive ongoing communication between A.C.’s teachers and the SPST and A.C.’s parents. I further find that after issues arose in the fall of 2005 and early 2006, there was intervention directly by the Superintendent of Special Education and direct discussions and communications with A.C.’s parents. While these discussions ultimately foundered largely on the issue of specific commitments for resource withdrawal for assistance with writing and writing integration, I have found that the evidence before me does not support that withdrawal from class to the resource room was required as an accommodation for A.C.’s disabilities. In my view, the evidence regarding the extensive communications with A.C.’s parents on the issue of the accommodations required for A.C. is sufficient to satisfy the procedural component of the duty to accommodate.

112Accordingly, for all of the foregoing reasons, I find that the respondent did not violate A.C.’s rights under the Code.

113The complaints of D.S. and A.C. are therefore dismissed.

Dated at Toronto, this 18th day of April, 2012.

”signed by”___________

Mark Hart

Vice-chair